Examination of Witnesses (Questions 260-269)
6 JULY 2004
DAVID LAMMY
MP AND CLARE
DODGSON
Q260 Dr Whitehead: Let me just take this
point on in terms of the fact that the people who will essentially
be making these judgments and collecting this money will be the
solicitors. I take the point about the crude numbers involved,
but as we know from the work that we have been involved in as
MPs about a certain other agency, it is not the numbers involved
that is the problem, it is the complexity and the relatively small
numbers that appear to clog the whole system up. If one deals
with some of the issues of crude injustice by making the system
more complex that does then clog the system up. Solicitors are
having to judge. A number of our witnesses have commented on the
fact that getting proof of what their client's means are would
be very difficult and it would be very difficult indeed certainly
in terms of the speedy judgments that are being suggested. Do
you have a reaction to that?
Mr Lammy: I think that depends
on the model that we eventually settle on. Certainly Model 1 would
be more complicated in terms of disposable income and determining
the outgoings within a particular household. I should say that
the solicitor gets to know his client. I am afraid we are talking
about an area where there are recidivists and where much of that
information will have been available previously. It is also not
unusual across means-testing wherever you find it in the public
sector. I have got a whole file here of articles on means-testing
over the year. This has been a moot point, when you walk into
a pharmacy, as to whether you get a prescription or not. There
are pharmacies that have to make a determination about whether
you are entitled to a free prescription or not. It is not as complex
as what we are proposing here potentially, but there is a determination
made by effectively the professional providing the public service.
Clearly solicitors will have their views on this system and how
that should be framed within a contract and I think they have
indicated some preference for Model 2 because of its very simplicity.
Those are the determinations that we have got to make. We have
to strike a balance there and in a sense that is why we are consulting
on the basis that we are, not on the basis that we have come up
with a scheme and this is it, but on the basis that these are
the variants across the piece within legal aid and it is probably
going to be a bit of a pick'n'mix to get the right model. I am
aided by what this Committee settles on in that sense. It is also
about understanding the position of the client within that context.
Q261 Dr Whitehead: If we are classicists,
between Scylla and Charybdis; if we are modern, between the rock
and a hard place in terms of judging where we land between complexity
and justice and simplicity and rough justice before we have even
got to the real bit of justice. Would one, for example, if one
tended towards the simplicity end of Model 2, perhaps get delays
in the system as a result of people disputing the fact that their
means were as they had determined and wanting to have another
go at it, or would there be systems which would enable people
to dispute it, or would the rough justice remain in order to reduce
delays as the real justice proceeded?
Mr Lammy: I think in a sense we
have touched on this previously. This is going on as it were on
the civil side to some extent. We will put the systems in place.
The LSC will be the accounting body. The LSC has been doing contracting
for some time now with solicitors so that we can come up with
the mechanisms that work best. We do not want to see delay, we
do not want to see excessive bureaucracy in this area and we will
have to look to see what is currently working in other systems.
Some of those systems are based on the common law, like our own,
but others are based on the civil system within other parts of
Europe.
Ms Dodgson: I think there is also
an important point to make about rights and responsibilities.
If you are an individual who says, "I want the Government
to help me with my legal costs," you have got to demonstrate
that you are eligible for that help and this is a reasonable thing
to ask of people. You cannot just receive legal aid funding if
you are not entitled to it and that is one of the reasons why
we have been tightening it up. 50% of people are on passported
benefits. We do have a system of checking with Jobcentre Plus
(it was the Benefits Agency) that people are in receipt of the
benefits that they say they are. We have weeded out people who
should not have been in the system because we have been working
with another government agency to make sure that we exchange information
between ourselves.
Q262 Mr Soley: You suggested you would
gain more benefits if you concentrated on the 1% of cases at the
Crown Court, which is 1% that the legal aid budget is saving.
Mr Lammy: Sorry, I am not clear.
Q263 Mr Soley: You said that we should
make more money from the most expensive 1% of cases.
Mr Lammy: Absolutely, and we are.
The newly modified very high cost scheme will save £259 million
over the next four years and we have made some adjustments to
the graduated fee scheme for that. I am very pleased about that,
it is a success story. It is bringing barristers under contract
for the first time. There were anomalies that we, quite rightly,
had to work out and it is right that we had the detailed negotiations
we had given that we were asking barristers to take account in
a way that has not been the case certainly with the way we have
extended contracting with solicitors. We are certainly dealing
with the very high cost cases. I think we are also dealing with
the very high cost cases within the Effective Trial Management
Programme which is working well. The judges I have spoken to are
concerned about cases being adjourned excessively and the preparation
time in terms of a prosecution. It is really what we call pro-action
protocol-type stuff on this civil side, making our systems work
better. Where we are piloting it we are seeing progress. We are
seeing a 27% reduction in delay nationally at the moment and in
some places like Essex the reduction is as high as 90% or so.
There are things that we are doing and that is what I would want
to emphasise in terms of this important piece of work. We are
not saying that this is the only and the best way to see a reduction
in legal aid spend. This is one mechanism, an important mechanism,
but there are many others.
Q264 Mr Soley: The Bar Council also suggested
to us that you could spend a lot of money collecting contributions
where the case was fairly simple. I think they were suggesting
cases where there was a plead of guilty and the costs simply went
towards a plea of mitigation. Would you accept that? In other
words, I think the Bar was implying that cases like that could
be exempted from these proposals because it is not necessary to
have representation.
Mr Lammy: At the moment in the
magistrates' courts I think the average cost of a case is about
£515. At the moment most of those defendants go unrepresented.
Model 3 proposes a gradient of contributions, as does Model 1.
Yes, I think it is important that we see a contribution where
that is appropriate, but we ought to remember, as I think you
are indicating, the difference in costs in the magistrates' courts
and the difference in costs in the Crown Court. That is also why
within the proposals there is still the possibility of continuing
with the Recovery of Defence Costs Orders, particularly in the
very high cost cases. I get confused between the models. One of
the models, I think it is Model 3, caps that contribution at around
£2,000. Some might say that there are some defendants who
are able to pay much higher costs in terms of their overall legal
aid spend and we would want to look at that.
Ms Dodgson: The other caution
about exceptions is that we do get into a situation where people
think if you exempt one thing you should exempt another, then
another and then you are back into this very complicated and unwieldy
situation. I think the point that was being made earlier on was
about trying to get the balance right between simplicity and personalisation
of looking at individual circumstances.
Q265 Mr Soley: The recovery of defence
costs you could extend to the magistrates' courts, you could enforce
it more effectively, is that what you were saying?
Mr Lammy: You would want to look
at what you are going to save money in the magistrates' courts
given the average costs of a case, how it would work and the fact
that most defendants go unrepresented anyway. I do not want to
say now what the overall scheme is going to be. I want to emphasise
that we are looking at all of it.
Q266 Ross Cranston: There is some suggestion
that in terms of 25% of the budget on the criminal side you can
identify six to 10 cases, a very small number of cases. You are
absolutely right to say that you are not dealing with this just
as a one-off thing, you have to see it within the context of other
moves, and maybe we will have to think about dealing with City
fraud-type cases in different ways. We asked the judges for a
note on what they are doing on the criminal procedure rules. I
think it would be useful to have a note on the Effective Trial
Management Programme because until today I had not realised the
reduction in time. If you are talking about 90% in some areas,
that is a significant reduction.
Mr Lammy: It is 75% in Essex.
Q267 Chairman: Is there any more information
you could give us on that?
Mr Lammy: I will do, absolutely.[3]
Q268 Chairman: If you continue to introduce
legislation in your area of the Department you will find yourself
in front of us quite often.
Ms Dodgson: I enjoy coming before
you.
Q269 Chairman: We have to probe the assumptions
on which legislation is based, not least to avoid the situation
we had last time round when the means-test had to be abolished.
This has been very helpful in doing so and we hope to get the
report out as
quickly as possible. Of course, we are shortly
to report on the civil legal aid side which we will be doing even
more quickly. We hope to assist the Government in terms of avoiding
some of the pitfalls that have arisen.
Mr Lammy: One of the difficulties
around legal aid is that one hears a lot from the practitioners
but it is hard to get to the client. Clearly we are talking about
the criminal side here, but that is particularly true on the civil
side and that is why this Committee has a particular role to play.
I certainly welcome the opportunity to use the Committee structure
in this way to scrutinise proposals and hopefully to get better
regulations and better legislation. Obviously I am pleased that
in the year in which I have been in post you have been able to
look at all of the parts of legal aid and I look forward both
to what you have to say on the civil side, which I think will
be coming up shortly, and your conclusions.
Chairman: Thank you very much.
3 Ev 95 and 96
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