Examination of Witnesses (Questions 80-99)
SIR HAYDEN
PHILLIPS GCB
13 JULY 2004
Q80 Mr Clappison: I am intrigued
by the answer you gave to Mr Vaz when you said that you became
aware of the changes which were proposed to the position of the
Lord Chancellor at the same time as the Lord Chancellor. Could
I ask you—and I hope this will not involve you giving away
any confidences—when that was?
Sir Hayden Phillips: Chairman,
I think I am going to ask for protection from the Chair now. I
think I have gone as far as I reasonably can to help the Committee
in this area. I owe a duty of confidence about these things to
the Prime Minister and to the former Lord Chancellor and I do
not intend to break it.
Q81 Chairman: They are questions
we can perfectly well put to the Lord Chancellor and may well
do so again. May I turn to the department's estate. You are about
to move into the Home Office building. Have you learned any lessons
from the operation of putting that together?
Sir Hayden Phillips: As far as
I know—and I checked on this recently—the work is
being done solidly and well. It is a big enterprise. It is of
considerable value to the Government as a whole that the Home
Office does not have to surrender the lease and then start again,
so there is a substantial saving to the taxpayer of about £130
million as a result of our going into what is the Home Office
building. There is a considerable advantage to the department,
which is across a number of scattered sites, to be able to bring
these various groups in different buildings together. I hope that
will reinforce and reinvigorate some of what I would describe
as the greater corporate sense of the Department for Constitutional
Affairs, if they are altogether in the same building. But the
Home Office I think do not leave the building until next year,
2005 early 2006, and I think my department is not scheduled to
go in there until 2007. We are still quite a long way away and
the planning stages have a long way to go. I am not sure I have
much more detail to offer the Committee on that.
Q82 Chairman: Your department and
the court service are the custodians of an extraordinary wealth
of historic buildings, some of them valued as much for their interior
layout as for their exterior. Over 800 courthouses have closed
since the Second World War and a recent report by SAVE Britain's
Heritage drew attention to the very significant loss of historic
buildings involved. Does the Minshall Street development in Manchester
provide evidence that the department really has changed its attitude,
in that not only has it responded to the public desire to keep
the courthouses in use but also it sees the value of using and,
where necessary, incorporating in larger facilities the treasury
of historic buildings that it has?
Sir Hayden Phillips: We have a
rich heritage in the courts. I personally would not want to see
that diluted. A lot of these historic court centres are at the
centre of towns and are therefore of civic importance, and actually
in terms of environmental development making use of excellent
heritage buildings is of value. We have worked quite closely with
SAVE over the three years while they were incubating their report.
I think they started off thinking we were probably a bunch of
philistines and came to the conclusion in the end that that view
was grossly unfair, and that we had, as you have described, changed
attitudes. I think there is partly a change of attitude. We have
appointed an architectural advisor and we get specialist conservation
consultants to help us on our buildings. There is only one building
now that is on the at-risk register and that is not a major courthouse
on our estate. I hope that we can continue to do that. If, for
example, we can add sensitively to a historic building, to make
it a more efficient place, that is better than rejecting the historic
building and creating something new somewhere else. I hope that
policy will be continued by the department when I have gone.
Q83 Chairman: Is that a recognised
policy within the department now?
Sir Hayden Phillips: Yes. Absolutely.
We have tried to do that closely with the Commission for the Built
Environment. We have tried to make sure in relation to both the
conservation and the preservation of historic courthouses that
we do that, and, wherever possible when designing new buildings,
we have tried to make sure they are of architectural significance.
Courthouses are a significant civic statement and we have managed
to win an award for that. These things are worth cherishing. Of
course there are problems with some of these historic buildings
in terms of the Disability Discrimination Act but we have managed
in most of them to do the sorts of conversions for those physically
incapacitated to handle that. Where we have not, we have a policy
of trying to make sure the cases are listed in an alternative
court which has the facilities so that people are put to less
trouble. The combination of trying to preserve the historic environment
of courts and to celebrate, if you like, the value of these buildings
architecturally, while making them fit for purpose for everybody
who needs to use them, is the policy of the department.
Q84 Chairman: In the course of your
consideration of the Supreme Court's location, have you had discussions
with English Heritage about what might or not be done to Middlesex
Guildhall if that were chosen?
Sir Hayden Phillips: Yes. We are
in the process of those discussions now. We had some earlier discussions
about the differing degrees of adaptation that might be required.
We now have to go through those thoroughly with a view to meeting
the commitment we have made for an announcement of the result
in the autumn—precisely when, I do not know. We shall need
to through that with English Heritage very thoroughly, both for
Middlesex Guildhall and, indeed, Somerset House, and we are engaged
with them now.
Q85 Chairman: Both of those are still
actively under consideration.
Sir Hayden Phillips: Yes. The
work will take place during August and September.
Q86 Chairman: The Commercial, Technology
and Construction Courts at St Dunstan's House are not satisfactorily
housed. They are courts which are very significant export earners
for this country. Lord Woolf has referred to them as "flagship
courts which attract business to this country from abroad".
When are you going to solve this problem?
Sir Hayden Phillips: I cannot
give you a precise timetable, but the plan is that we should get
rid of St Dunstan's House and create, on the Royal Courts of Justice
site, a commercial court. At the moment I think that means doing
things to what is called the Queen's Building there. I am not
absolutely up to speed, Chairman, on that. Would you like me to
give you a note about where we have got to on the commercial court
project?[7]
I think that would be the easiest way to inform the Committee.
Chairman: We would certainly like to
see a note indicating the progress, with a conclusion in sight.
This is a very important issue.
Q87 Mr Clappison: Could I turn to
court fees and access to justice. I have two questions. Are you
concerned that people with legal claims will be discouraged from
bringing cases to court as a consequence of the department's policy
on moving towards full cost recovery. Secondly, do you have any
estimate of the number of litigants who will no longer seek recourse
to the courts as a result of those initiatives?
Sir Hayden Phillips: I cannot
answer the second question. I need notice of that, but if there
is an estimate that we have made I will give it to you.[8]
Q88 Mr Clappison: Thank you.
Sir Hayden Phillips: As far as
the first question is concerned, this is a question of moving
towards full cost recovery; it is not just saying that everything
has to be paid for from tomorrow, and we do have a range of areas
in which I expect subsidy will properly continue: family proceedings,
domestic violence, child contact, adoption and things of that
sort, and all those who are on means-tested benefits. We have
to try to balance the value of properly charging where it is reasonable
to do so at reasonable levels, which helps us to the extent that
we can then secure the funds for the courts, as it were, without
having to engage in the debate about other priorities, because
we can then make sure those fees are locked in, and without doing
it to the extent that would be damaging in the longer-term. I
think we would be expecting to move overall to around 80% recovery
over the next year or so.
Q89 Mr Clappison: As you have acknowledged,
there are some important types of litigant who have to be protected,
such as in family cases, and other people have to be protected
because of very low incomes. There is also a balance to be struck
in the public subsidy of the courts. But you will bear in mind
the interests of the ordinary man in the street as a litigant
in this when you set the costs.
Sir Hayden Phillips: Absolutely.
Q90 Mr Clappison: You have very helpfully
given us a table on page 36 of your answers, setting out the fees
income against expenditure for each of the types of courts. Setting
aside the family courts, where there is a very important interest
at stake, as we have acknowledged, and turning to the county courts
and the high courts, the county courts, it would appear, are generating
more fee income than the cost and providing you with a subsidy,
whilst the high courts are being very heavily subsidised because
the fees income is falling well short of the cost. Bearing in
mind that the man in the street, if he has a legal claim, is very
likely to be going to the county court—the small businessman,
the person with a grievance arising out of contract and so forth—why
is it that they are bearing so much more of the costs than the
probably much bigger concerns, the companies, the international
litigants, you are trying to attract who go to the high court?
Sir Hayden Phillips: It is partly
the sheer volume of business and the level at which you can reasonably
set fees in the county court. If you look at the probate area,
that has been cross-subsidising the rest for a number of years
now. We are proposing there—and we are consulting at the
moment on this—a reduction, so that income is kept in line
with expenditure, so that we no longer, as it were, cross-subsidise
in that way. I think we probably need to look under the breakdown
of the sorts of cases that are going there to explain that fully
and I cannot do that straight away. I am sure I can give you an
explanation in more detail, if you would like it, as to that variation.
Q91 Mr Clappison: But you will bear
in mind that the man in the street, with the type of case they
going to have as a consumer or a small businessman or a small
landlord, is going to be using the county court. The man in the
street will be using the county court rather than the high court.
Sir Hayden Phillips: Absolutely.
Q92 Ross Cranston: The trend for
the county court is actually favourable. For 2003-04 there is
only a very small amount of cost recovery of 104%, whereas earlier,
in 2001-02, it was 116%.
Sir Hayden Phillips: That progressive
rebalancing year-on-year is what we are trying to achieve, but
obviously we do not want to change the fees sharply and we try
to do it, where we need to, very gently if we can.
Q93 Mr Clappison: Will you be seeking
a full cost recovery or a cash target for the proposed Supreme
Court?
Sir Hayden Phillips: Yes. I think
we have already announced that as far as civil cases are concerned
we would follow the same policy. I forget the precise figure,
but that will be loaded not onto the individual cases that come
into the court, which produce massively high fees, but on to general
civil litigation across England and Wales. I think the sums of
money that would be involved there in terms of the increase are
very, very small indeed to pay for the Supreme Court. Types of
cases other than civil litigation will be funded from public expenditure
in the normal way.
Q94 Chairman: You are aware obviously
that members of the judiciary often express extreme unhappiness
with a full costs' recovery policy and its implications for access
to justice and the fairness of the proceedings that they are conducting.
Sir Hayden Phillips: They do.
I have had discussion over my time, Chairman, with them about
that. I think we have reached a point where we have agreed to
join up somewhere in the middle in this debate, in the sense that
we do make it clear that there are certain categories and types
of cases for which we do believe subsidy is right. A test, as
Mr Clappison was implying, is access to justice. If there was
real evidence that that was genuinely being threatened in individual
cases—and I think it is individual cases that matter; we
have to look at the detail here—then I think that would
be very worrying. But, as far as I know at the moment, our discussions
with the judiciary, particularly on the current round of fees'
increases and a progressive move towards full cost recovery, are
at the moment supported by the Master of the Rolls who has often
been the most outspoken in this area.
Q95 Chairman: You do accept that
there is a public interest in the law being defined which goes
beyond the interests of the participants in some of the cases
involved, and there is also a public responsibility, if we in
Parliament, for example, have not made the law sufficiently clear
or the regulations have not made the law sufficiently clear, for
the costs which arise from having to clarify it through the courts.
Sir Hayden Phillips: I accept
that. You will also know, however, that I am dealing with two
important principles here: one is the one you have enunciated
and the other is the one that the Treasury have enunciated, and
my job is to try to make sure this marriage of convenience works.
Q96 Mrs Cryer: Could I touch briefly
on yesterday's Spending Review. Apparently the new PSA objective
2, target 5, is "to achieve earlier and more proportionate
resolution of legal problems and disputes and by: increasing advice
on disputes to help people resolve their disputes earlier and
more effectively; increasing the opportunities for people to settle
out of court; and reducing delays in resolving disputes that must
be decided by the courts. Because we are running out of time,
could I just push on and ask about the middle item there, alternative
dispute resolution. What is the department doing to encourage
mediation and other forms of dispute resolution?
Sir Hayden Phillips: To be very
specific, we have an automatic referral scheme for mediation with
which we are experimenting at the Central London Civil Justice
Centre. We have a mediation advisor now in the Manchester County
Court, actually there, so we can see how that works, and in 28
other courts we have new information, leaflets and other things,
which we will give to people so they can consider whether they
might benefit from mediation. We have a national helpline on this
and we are doing a national awareness campaign with the mediation
sector—which is a great variety of different types of people.
Mr Cranston knows about this. We are discussing this in general
but you really have to look at the individual type of case you
are dealing with to see whether mediation can work better than
it does now. Of course, Lord Irving announced, I think in 2001,
that the Government had committed itself to look at mediation
in all its civil contract cases with the agreement of the other
party. I do not have the figures with me now but I think we did
something like 40 mediated cases in the first year and that is
now very, very substantially greater. If I may, I will send that
information to the Committee because it is very important that
the Government itself sets an example in this area, if that is
our policy.9 I am sorry to go on at some length, but that is where
we are now. I will obviously send you more information if you
would like some more later on.
Q97 Mrs Cryer: Thank you. Clearly
we are moving in a pretty big way in that direction. What assessment
has been made of the likely savings to the court service eventually,
having implemented mediation?
Sir Hayden Phillips: I think it
is too early to say in general terms what sort of savings this
might lead to. As I say, the issue is not: mediation across the
board, taking cases out of court, what will that imply for court
costs? We are looking at a whole series of individual examples
of where it might be effective. When we evaluate those pilot schemes
is the point at which we will make an assessment of where there
[9]
might be savings. Some of these schemes are, as it
were, integrated into the court itself. I think it will be interesting
there to see how that changes the cost balance, but at the moment
I could not give you a safe figure for how much we would save.
Q98 Mrs Cryer: Could you very briefly
touch on reducing delays in resolving disputes that must go to
court? What is to be done to reduce those delays? I have a lot
of experience of this through constituents.
Sir Hayden Phillips: The main
things being done are a stronger role for the judge in managing
the cases and the parties. Certainly, following the Civil Justice
Reforms that Lord Woolf proposed, we have made quite a bit of
progress over the last few years in reducing some of the timescales
involved in civil litigation. Secondly, we are trying to drive
down the time taken for the more difficult family care cases,
in the way I described earlier. In the criminal courts we are
very dependent on trying to make sure that the relationship between
the police, the prosecutor, the court staff and the defendant
is managed by the judge. This is a new style of judicial management
of cases. It will come, it will develop, and that, it seems to
me, is the best guarantee of having a grip on the case, rather
than just leaving it to the parties to decide when they are ready.
Really proactive management of cases is the way we are best trying
to achieve these reductions in time.
Mrs Cryer: Thank you very much.
Q99 Chairman: We have taken full
advantage of the opportunity to question you for the last time,
taking you right up to the maximum time. We would like to thank
you for the courtesy and cooperation you have given to the Committee
during our period of co-existence. I am sure the Members of the
Committee would want to wish you all the very best in retirement.
Sir Hayden Phillips: Thank you
very much, Chairman. Could I just say two things. First, it would
be wrong for me not to say today how much we and the department
regret, and I know the Committee will too, the recent death of
two senior judicial figures, Lord Justice Kay, very suddenly,
who helped us enormously on criminal justice and the Recorder
of London Michael Hyam. For the record, I thought it was right
I should say that has been quite a blow. They played two key parts
with us in the justice system. Secondly, Chairman, thank you very
much for your good wishes. I have actually enjoyed appearing before
you. I hope you have found me reasonably open and I hope that
tradition will continue. I am delighted to say the Committee arrived
on the scene at the moment when my extra 18 months kicked in,
so whatever we have wrought together has been done in that time.
Chairman: You will be a hard act to follow,
but we look forward to seeing your successor.
7 Ev 50-51 Back
8
Ev 51 Back
9
Ev 51 Back
| 
