Examination of Witnesses (Questions 240-259)
6 JULY 2004
DAVID LAMMY
MP AND CLARE
DODGSON
Q240 Mr Soley: A number of our witnesses
suggested that the court should have a safety net system where
they could order representation for a person if they thought it
was appropriate. Do you think that is right?
Mr Lammy: I would like to indicate
that I am open to that option. I think that is something I would
expect to come back in the consultation, and certainly the whole
spirit of this consultation is not to be fixed about that position;
if there are strong arguments for that then we would want to consider
them very carefully.
Q241 Mr Soley: It could cut short an
appeal on human rights: if that person appealed on human rights
grounds that they did not get legal representation from the solicitor?
Mr Lammy: Yes. I have indicated
right at the back of the consultation, 38 in the Appendix, that
we do believe that this is within the European Convention on Human
Rights, Article 6, rights to a fair trial, and I think it is important
to remember that across Europe, where European countries obviously
want to ensure their Article 6 rights, many countries effectively
have a pro bono system for satisfying those rights. We
have the most generous system in terms of the tax-payer funding
those who are poor, not effectively the Law Society or the Bar
Council getting together and coming up with a pro bono
system. Article 6 rights do not prescribe the right to legal aid.
That is very much the historic British interpretation of that.
So I am satisfied that this scheme is well within our human rights
obligations.
Q242 Mr Soley: If you look at the Scottish
legal aid system, are you aware they have a safety net system
to grant legal aid?
Mr Lammy: Yes. I understand that
that is available in Scotland, and, as I have indicated, I would
be open to that as a recommendation coming forward. Let's look
at the strengths and merits of it, let's look at the costs implications
of it and let's come to a decision.
Q243 Mr Soley: Therefore you would be
willing to look at the possibility of an appeal system being introduced
possibly to a court possibly to somewhere else?
Mr Lammy: Ultimately, I am guided
very much by what is already happening on the civil side and has
been happening for some time. In that sense there is an appeal
mechanism to a binding review committee and, if satisfactory,
there is of course judicial review. If I look at the amount of
challenge, it is small relative to the size of the system and
I would not want to reinvent the wheel, but I would certainly
want some appeal mechanism. I think it is important.
Q244 Chairman: Thank you for that. Can
we have a look at the means test system? How can you avoid the
means testing regime having precisely the difficulties which led
to the abolition of the previous regime only three years ago?
Mr Lammy: I think the first thing
is to say that there are different systems proposed and in a sense
those systems are fundamentally different, but all go to illustrate
the challenge of means testing. If you look at the—
Q245 Chairman: But there is only one
option on offer, is there not, because the LSC have effectively
advised you that options one and three are not likely to be acceptable
to solicitors to carry out and option two is really the only one
that is running, is it not?
Ms Dodgson: No, what the Commission
has said is it has expressed its preference from where it sits,
Chairman, that there are the three options then our preference
would be for option two; but if the decision were for one of the
other options or a hybrid of the three, then, of course, we have
made previous options work, we would make whatever the Minister's
decision on what the new one would be work.
Mr Lammy: Model one is certainly
a more complex model. It is certainly not life-style neutral,
I think the phrase would be, in the sense that much disposable
income is taken into account. It is working essentially in a more
complicated way in Italy. Option two, the simpler option, is working
in France, in Holland and in Australia, and, indeed, the Australians
are looking to extend it beyond Queensland right across the board.
They do upgrade and have particular criteria as regards families
and single people in those countries, but effectively that is
the simpler system. Option three, I think, is somewhere between
the two. It is effectively about contributions, and if you look
at the proposals, I think many of our constituents would say,
if you look at page 38, that if you are on an income of around
£15,000 that you are able to pay a contribution of £75,
which is effectively less than the cost if your car was towed
away.
Q246 Chairman: I do not think there is
much disagreement amongst us about the merit in principle of doing
some of these things, but it is the experience, the very recent
experience, of the scheme collapsing under its own weight and
costing more to run than it was generating in income, and the
danger that if you managed to address that problem successfully,
which is very difficult, you get to the point where you really
are deterring people who have a reasonable case for legal aid.
It is a very difficult circle to square?
Mr Lammy: It is, but that is why
I think that certainly option two and option three need ultimately
less bureaucracy, less process and certainly far less than was
the case under the old scheme, and, indeed, the auditing trail,
the contracting mechanism under any new scheme under the auspices
of the LSC is obviously very different to the scheme previously
that was effectively an application to core administrative staff.
Ms Dodgson: The other point is
that we did not have the modern management techniques I was touching
on earlier in place previously; so we would have the two processing
centres, we would be doing more business electronically and by
telephone, so that is a material difference to when we had the
previous scheme.
Q247 Chairman: Are you proposing to pay
solicitors anything for making these decisions? Has that been
factored in or is it not a part of the scheme?
Mr Lammy: We are consulting. They
will no doubt indicate how they feel about this. What I would
say is that I would expect the scheme that would come forward
to be simple in application and to be part of the general contract.
Q248 Chairman: Is not the auditing of
the means testing quite a big and potentially expensive task for
the Legal Services Commission?
Ms Dodgson: We already audit our
suppliers regularly; so it would be a different type of auditing,
and also we would want to get electronic information that can
show patterns and variations and then, when we have got something
to be worried about, to home in on there rather than doing a one-size-fits-all.
So I think, yes, there are a set of costs, which the Committee
raised earlier on, but offset against the savings the benefits
are there, and I do not believe that the current audit system
and the new way of working will cause a huge financial burden
on the Commission.
Q249 Chairman: It would not be realistic,
would it, to carry on thinking terms of a scheme under which solicitors
would be chasing after contributions, and this is the weakness
of at least two of your models, that we cannot envisage solicitors
being ready to set up a mechanism to chase contributions, however
desirable in principle it might that someone with a certain
income makes a direct financial contribution?
Mr Lammy: Let's look at the scheme
as it is really going to work, I think. The first thing is to
remember that 50% of criminal defendants are already on some kind
of benefit and essentially they will be passported straight into
the scheme. So that is virtually a rubber stamp for the solicitor.
There is another 30, 35% of people who are on such a low income
that they also would qualify. That is a further rubber stamp effectively
for the solicitor. Then there is a small determination of between
10 and 15% of defendants where there is a judgment call, where
there has to be a process. That would be under contract with the
Legal Services Commission. For some that would be straightforward.
It very much depends upon the model that we eventually come up
with as to how complex or simplistic that would be. I have indicated
very strongly that I certainly would want not to see that being
the complicated model that we had previously.
Q250 Chairman: It is not an issue about
complication, it is an issue about whether you can get solicitors
to send the bailiffs in to chase contributions on your behalf.
Mr Lammy: The 5-10% of defenders
facing a serious criminal charge you would expect to be prepared
to pay and they probably would pay.
Q251 Chairman: It would be unrealistic
to expect in all cases that he would pay and that is the problem
the solicitor is going to have.
Mr Lammy: He would not get legal
aid, he would have to pay for it himself.
Q252 Chairman: We will see.
Mr Lammy: I think that is what
the public expect.
Ms Dodgson: It is this principle
that if you can pay you should.
Chairman: I do not think any of us have
any problem with that. It is a practical problem as to whether
solicitors' firms are equipped or willing to undertake the task
of chasing up money from people and that will include some of
the people most accomplished at not paying money.
Q253 Ross Cranston: I want to come back
to this issue that has already been raised about whether or not
you have done enough research into the costs that are going to
be saved and the benefits you are going to get as a result of
these changes. The Legal Action Group in their evidence said there
were something like eight different aspects of what they thought
needed to be done in terms of analysis before you could actually
make a proper cost-benefit analysis. I am a bit more simple minded
than that. Let me give you one example. If you are going to have
more unrepresented defendants in court, you have got a cost there.
It is much more difficult to handle those cases. It takes more
time because they cannot put their case and you then have to intervene
more and there are costs there. That has not been assessed. There
is maybe a downside because you are reducing the amount of representation.
Mr Lammy: Ross, you have experience
of the magistrates' system and you know that the vast majority
of the 1.8 million cases going through our magistrates' system
every year are people representing themselves. If I look at the
1.3 million motoring offences, only 2% of those people are represented.
So we have a lay magistracy system—and we have had for a
long time—that is very well able to cope with people representing
themselves. We are not estimating a big rise in people representing
themselves for the reasons that I have said, that the lion's share
of people within our criminal justice system are either on benefits
or on a low income. I think we are estimating about one extra
person per week representing themselves. Our system is able to
deal with that.
Ms Dodgson: Of the 1.8 million
total defendants in 2003, there were only 630,000 Representation
Orders issued.
Q254 Ross Cranston: That is because most
of them plead guilty and they do not need representation. The
Legal Action Group set out an assessment of the impact on victims
and witnesses caused by delays in terms of the grant that might
result.
Mr Lammy: That is right, and they
are right to indicate that and that is why we are right to indicate
that we want to see a system that does not involve delay. That
is why both fairness and simplicity are key to determining which
model is best and how it should best work. I do not disagree with
that.
Ms Dodgson: No, neither do I,
and also monitoring very carefully. If there are delays, we spot
them immediately, we find out what is causing them and we get
straight on the case to sort them out.
Q255 Ross Cranston: I think the Chairman
has written to the Department specifically about some of these
aspects of the cost-benefit analysis and no doubt you will come
back to us on that. You mentioned the means-test as applied in
parts of Australia. In the consultation paper you talk about household
income and we were a bit puzzled by this.
Mr Lammy: Is this on Model 1,
disposable income?
Q256 Ross Cranston: You talk about the
entitlement based on household income taking no consideration
of the number in the household, it is Model 2. As you quite rightly
say, most of these defendants are going to be young people, unemployed
or on low incomes. What do we mean by household income? Do we
mean that you are going to be taking into account what their siblings
in the household are earning?
Mr Lammy: Let us be clear on this,
Model 2 is the simplest model, it is a cut-off model. It is working
in different ways in France, Holland and Queensland, but what
they do is factor into the household income the difference between
someone who is single and a family member in different ways. It
is certainly the case that, as framed on pages 32-33, a single
man with few commitments earning £24,999 would receive full
costs for his legal aid and a lone parent earning just over £25,000
with numerous kids would receive nothing. In that sense it is
a simpler model to apply, but I can see why in other countries
in which that is applied there are certain up-rating points systems
for those with families and other things.
Ms Dodgson: It is getting the
balance right between not doing what other parts of the public
sector have done and trying to factor in every eventuality of
an individual's personal circumstances. I am naming no names here,
but we could all think of examples. It gets so complicated and
so unwieldy and so dense for people to understand that it just
becomes unworkable. It is also about not disadvantaging people
in those sorts of circumstances. We are open, as the Minister
said, to looking at some simple suggestions about up-rating, about
numbers of children, things like that. So this is an open book
in terms of the consultation.
Q257 Ross Cranston: The Irish system
is very flexible in terms of varying the means-test. The disadvantage
of the fixed system is that you have then got Article 6 problems,
have you not, you have got human rights problems in that you may
cut off aid where arguably the person should get aid. I accept
the need for simplicity because otherwise, as Clare says, it gets
too complicated, but then simplicity sometimes can produce hard
cases and maybe Article 6 non-compliant cases.
Mr Lammy: I have not got the Convention
in front of me. The Convention is not the right to legal aid,
the Convention is the right to a fair trial and representation.
Q258 Ross Cranston: It is slightly unfair
comparing us with the Europeans because, of course, they have
a different system, they have much more investigation at the front-end
by judicial officers and so on, but we do have a very generous
system, there is no doubt about that. I am not sure I have had
an answer about the household income point, but maybe you can
come back on that.
Mr Lammy: I do not think we were
pulling any punches in terms of Model 2, indicating, as I think
we said there, that the Model has the benefit of simplicity, but
we also went on to say that clearly anyone earning over £25,000
would be cut off. We are not saying it has to be Model 1, Model
2 or Model 3, there is flexibility within this and in a sense
the principles are here and hopefully it will generate a discussion.
We will receive views, including the view of this Committee, which
I think is important in that regard and we will take it forward.
Ms Dodgson: My understanding on
the household income point is that it is the income that comes
into the household, but if that is technically incorrect I will
come back and clarify the facts immediately.[2]
Q259 Ross Cranston: So the brothers and
sisters would be taken into account then?
Ms Dodgson: I will check the definition,
but my understanding is that it is as it says, it is the income
of the household.
Chairman: I can see some teenagers moving
out pretty rapidly.
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