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Select Committee on Constitutional Affairs Second Report

2 Objectives and tasks

Objective A: to examine and comment on the policy of the Department

Task 1: To examine policy proposals from the UK Government and the European commission in Green Papers, White Papers, draft Guidance etc, and to inquire further where the Committee considers it appropriate

23. We described in our Annual Report for 2003 our inquiry into the Government's proposals which eventually were expressed in the Constitutional Reform Bill. We have already mentioned (in paragraphs 2 and 3 above) continuing work on this subject.

24. In July 2004 the Government published a Green Paper, entitled Parental Separation: Children's Needs and Parents' Responsibilities.[13] On the basis of this Green Paper, we began our inquiry into Family Justice (see paragraphs 7 to 10 above).

Task 2: To identify and examine areas of emerging policy, or where existing policy is deficient, and make proposals

25. One aspect of the proposed changes to the office of Lord Chancellor was the impact on the Lord Chancellor's power of patronage in ecclesiastical matters. We devoted a day's evidence session to this topic. We focused on the following particular areas of interest :

26. We took evidence from representatives of the Bishops' Council; lower clergy and lay people; and officials from the Prime Minister's office who deal with ecclesiastical patronage. The evidence given at this session contributed significantly to the Government's decision that the Lord Chancellor's ecclesiastical patronage should revert to the Crown, on the advice of the Prime Minister.

27. We have continued our oversight of the asylum and immigration system by inquiring into the Government's proposals contained in the consultation document: The Asylum and Immigration Tribunal—The Legal Aid Arrangements for Onward Appeals (see paragraphs 4 and 5 above). After the Government dropped the controversial "ouster clause", which was designed to restrict access to the courts, it established a paper oriented review system, with cases to be returned to the Asylum and Immigration Tribunal (AIT) where there was an error of law in the original decision.

28. The Government now proposes to change the basis of funding such appeals. It proposes to "introduce a system of retrospective funding for challenges to decisions of the AIT, with legal aid being awarded at the end of the process when the appeal decision has been reconsidered" (thus ensuring that lawyers would have to bear the risk that if they pursued a case which the Tribunal or Administrative Court decided was without merit , they would not be paid for their work); it also proposes to set the threshold for the test which claimants' lawyers would have to meet to obtain funding at a very high level, namely, far more than reasonable prospects of success. Our concern is that the Department may be using the legal aid system as a backdoor route to restrict legitimate appeals.

29. We have already noted our work on family justice (see paragraphs 7 to 10 above).

Task 3: To conduct scrutiny of any published draft bill within the Committee's responsibilities

30. Our inquiry into the Draft Criminal Defence Service Bill [see paragraph 13 above] was our first experience of examining a draft Bill. Initially, we had some difficulty in getting a text of the draft Bill from the Department. We came very close to being unable to conduct the inquiry because of the late appearance of the draft Bill. We understand that the late production of draft Bills is a common experience with other Committees and we hope that the Liaison Committee will continue to pursue this matter.

31. Despite this problem we found the process of examining the draft Bill extremely useful. It gave witnesses who were involved with the administration of justice, whether from the professions or on the judicial side, an opportunity to explain the practical difficulties associated with the Government's proposals. It also allowed the Government and the Legal Services Commission an opportunity to respond to some of the criticisms made by those from whom we took evidence. Whenever time permits we will take the opportunity to examine draft Bills in the future.

Task 4: to examine specific output from the Department expressed in documents or other decisions

32. The Department continues to supply us with a wide variety of documents which it produces. These range from research reports and statistical bulletins to agency Reports and circulars. These are used to inform our continuing inquiries.

33. We have not always received papers from the Department of an adequate standard. We had some difficulty in getting trustworthy statistical analysis of data on several occasions. This arose in connection with inquiries relating to legal aid and Family Justice. For example, the Department gave us misleading statistics relating to domestic violence, which related not only to domestic violence , but also to other types of harmful conduct.

Objective B: to examine the expenditure of the Department

Task 5: to examine the expenditure plans and outturn of the department, its agencies and principal

NDPBs

34. As it did last year, the Committee Office Scrutiny Unit helped us with the scrutiny of the Spring Supplementary Estimates. It brought to our attention matters which we subsequently raised with the Department in writing. Later, we questioned Sir Hayden Phillips GCB, the then Permanent Secretary of the Department, in oral evidence on public expenditure issues.[14]

35. The Department continues to be the subject of special measures from the Treasury. Sir Hayden described the reason for this as follows:

I observed during my first few years in the Lord Chancellor's Department that year-on-year at around Christmas time I was told we were going to overspend on our budget, particularly in relation to legal aid, and each year we put in a reserve claim at the end of the year to cover it. Quite often, that reserve claim turned out not to be necessary. In 2002—and I am trying to do this by anecdote because it brings out the problem—I was told we needed a reserve claim of £40-odd million and I used up some considerable personal capital in the Chief Secretary of the day to persuade him that that was all right. He agreed. Then, as a result of a bureaucratic disaster, the supplementary estimate was not laid and therefore we did not get the money, so I spent the next two months sweating quite considerably. But I should have relied on our historic inability to forecast accurately: we came out and we did not need the reserve claim.[15]

He continued:

We under-spent, I forget the amount, and I was told rather cheerfully that it was all right. I thought that this was not a cause for celebration; this was a cause for real concern. That was the point […] at which I decided that we had to fundamentally reform our finance function and I went into the market place and hired a professional from the private sector who had a proven track record as a finance director in major companies. That we began to put right, but that activity did not take place until the beginning of 2003 on the creation of the Committee. In that year we had a very large reserve claim again, at the point at which I wanted to make some serious changes in the way the department did business and the Treasury wanted to see some serious changes in the way the department did business, so the so-called special measures came together with what I recognised was a real need for the department to change. They amounted to our working extremely closely with the Treasury—on a quarterly basis; regular meetings. We have had for the first time over the last 18 months a set of management accounts that you can absolutely trust and there is one financial story told to everybody, including the Treasury, rather than a series of different figures—which has always been the argument before. I think that has been extremely helpful and the result is that we have been told by the Treasury and by the Chief Secretary that we have genuinely made a major transformation in financial management.[16]

36. Sir Hayden thought that having the Department on "special measures" was an advantage which he hoped would continue.[17] We will continue to monitor the situation closely.

Objective C: to examine the administration of the Department

Task 6: to examine the department's Public Service Agreements, its associated targets and the statistical measurements employed, and report if appropriate

37. We took evidence on the Departmental Annual Report and on the departmental Public Service Agreement Targets.[18] Because the Department is changing so rapidly it is not possible to make comparisons over any length of time.

38. _This was the last occasion on which Sir Hayden appeared before us as Permanent Secretary; he retired shortly afterwards to be replaced by Mr Alex Allan.

Task 7: to monitor the work of the department's executive agencies, NDPBs, regulators and other associated public bodies

39. In our Annual Report for 2003 we mentioned our plans to conduct evidence sessions with representatives of public bodies for which the Lord Chancellor was responsible and to provide a link between Parliament and two other important public officeholders associated with the Department, namely the Information Commissioner and the Electoral Commissioner. Time did not permit us to take evidence from the Electoral Commission, but we did take evidence from the Information Commissioner, as well as from the National Archives. In the week before we took evidence from The National Archives we visited its facilities at Kew and the Chief Executive explained the evolution of the Public Records Office into The National Archives. Both of these sessions contributed to our inquiry into the Implementation of the Freedom of Information Act.[19]

40. We also took evidence from the Legal Services Ombudsman, Zahida Manzoor CBE. Among the issues we focused on were: the extent to which the role of the Legal Services Ombudsman had changed with the advent of the new role of the Legal Services Complaints Commissioner; the extent to which the changes within the Law Society (i.e. the abolition of the Office for the Supervision of Solicitors and the pilot trial of the new Solicitors complaints Bureau) were driven by criticism from the Ombudsman's office; and the expected impact of the Review of the Regulatory Framework for Legal Services in England and Wales.

Task 8: to scrutinise major appointments made by the Department

41. The power to scrutinise major appointments made by the Department became an issue during the inquiry into the Constitutional Reform Bill proposals, because some suggested that a Committee should interview appointees to the Supreme Court around the time of their appointment. In our First Report[20] we said:

While we heard no convincing evidence to indicate that confirmation hearings would improve the process of appointing senior judges, we recognise the potential benefits to public understanding of the role of the new Supreme Court if a practice were to be adopted of inviting Judges, including recently appointed ones, to appear before an appropriate Committee from time to time (including this Committee).

42. However, we do think that it would be useful if we were to set up a general practice of examining senior departmental non-judicial appointees. This might be formal or informal, according to what suited the circumstances best. We had a very useful informal meeting with Alex Allan, the new Permanent Secretary, soon after his appointment at which we were able to discuss his plans for developing his Department's work.

Task 9: to examine the implementation of legislation and major policy initiatives

43. As we mention above (see paragraphs 15 and 16) we carried out an inquiry into the implementation of the Freedom of Information Act 2000, for which the Department for Constitutional Affairs is the lead Department. This was on the basis of a snapshot of three areas: the police; the National Health Service; and local Government. With just less than a month to go before the Act becomes fully operational, we found that readiness for implementing the Act day from central government departments appeared to be "patchy".

Objective D: to assist the House in debate and decision

Task 10: to produce Reports which are suitable for debate in the House, including Westminster Hall, or debating committees

44. We have already mentioned that our Report[21] on the Government's proposals which were set out in the Constitutional Reform Bill was extensively used in debate in the House of Lords. In addition, our Report on Asylum and Immigration Appeals[22] was tagged on the order paper in time for debate on the Asylum and Immigration (Treatment of Claimants, etc.) Bill at report stage.[23] We shall propose that our Report on the Draft Criminal Defence Service Bill[24] will be tagged on the Order Paper when the Government puts forward the Criminal Defence Service Bill for Second Reading.

All tasks: the extent to which systematic structure is in place for meeting the indicative tasks listed, and response of department

45. We are making progress in establishing a settled pattern of work involving the Department. We have taken steps to build closer links with the Committee Office Scrutiny Unit which has given us invaluable assistance in examining the Supplementary Estimates. The Scrutiny Unit provided us with help when we investigated impact of the proposed abolition of the Lord Chancellor's role in ecclesiastical patronage (see paragraph 24 above). The Unit gave us indispensable help in our work on the Legal Services Ombudsman and on the Draft Criminal Defence Service Bill.

13   Cm 6273 Back

14   Constitutional Affairs Committee, Oral evidence, 13 July 2004, Session 2003-04,HC 907-i Back

15   Q 43 [ Sir Hayden Phillips ] Back

16   Q 44 [ Sir Hayden Phillips ] Back

17   Q 44 [ Sir Hayden Phillips ] Back

18   Constitutional Affairs Committee, Oral evidence, 13 July 2004, Session 2003-04,HC 907-i  Back

19   Constitutional Affairs Committee, First Report of Session 2004-05, Freedom of Information Act 2000 - progress towards implementation, HC 79-I and II Back

20   Constitutional Affairs Committee, First Report of Session 2003-04, Judicial appointments and a Supreme Court (court of final appeal) HC 48-I and II Back

21   ibid Back

22   Constitutional Affairs Committee, Second Report of Session 2003-04, Asylum and Immigration Appeals HC 211-I and II Back

23   See para 4 above Back

24   Constitutional Affairs Committee, Fifth Report of Session 2003-04, Draft Criminal Defence Service Bill HC 746-I and II Back


 
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Prepared 24 February 2005