Examination of Witnesses (Questions 80-99)
RT HON
LORD FALCONER
OF THOROTON
QC AND ALEX
ALLAN
18 OCTOBER 2005
Q80 Chairman: Can I turn to special
advocates which we reported on. We expressed a number of concerns
about both the process and the nature of the role of the special
advocate. What progress have you made on establishing a pool of
advocates and what steps have you taken with the Attorney General
to ensure they have got sufficient support?
Lord Falconer of Thoroton: You
raised in your report the fact that there were not enough of them
and they were not sufficiently supported. In November 2003 there
were 29 of them, there are now, I think, 50 of them. The number
has gone up significantly. We are also in the process of appointing
yet more because the more there is, the easier it becomes. In
relation to support, we consulted with the special advocates themselves
and said what help did they want. We have set up something called
the Special Advocates Support Office which provides substantial
support to the special advocates appointed. We have put together
a comprehensive written training pack which comprises substantial
material addressing how it works, helping them in the work they
do. Also, we have, as a result of the discussions in this Committee,
set up a database which helps them get access to decisions and
practice which cannot be publicly available but can be available
to them. We hope that we have gone a very long way to meeting
many of the concerns this Committee expressed.
Q81 Chairman: Are you continuing
to explore ways in which the special advocate might be able to
seek information, which is relevant to the defence, when authorised
by the judge without actually disclosing the evidence on which
it is based to the defendant? There are some procedures for doing
that now, very severely circumscribed, quite little used. They
do mean, of course, frequently the special advocate cannot find
out whether the defendant has a cast iron alibi against the evidence
which is being brought into play.
Lord Falconer of Thoroton: That
was the most difficult one of the proposals that were put last
time. I have not got a proposal to put in relation to it. I am
not aware of what further discussions are going on. Can I look
at that? The strong feeling I got on the last occasion was the
anxiety about giving material that was classified was such that
it would be unlikely that either me or the Attorney General or
the officials would be able to come up with an answer that would
satisfy the Committee because of the risks of the material going
to the wrong place. I will come back in detail on that.
Q82 Jeremy Wright: Lord Chancellor,
can I take you back to the criminal justice system, specifically,
what is happening with regard to the Criminal Bar at the moment.
The Criminal Bar are described as being on strike, it is not a
strike in the traditional sense of the word, of course, but there
is no doubt that this is having a significant impact on the practice
of criminal justice. It has also never happened before. Can you
give us your thoughts as to why it is happening now?
Lord Falconer of Thoroton: I think
it is happening now because there needs to be a fundamental rethink
in the way that lawyers are paid by the State in the context of
defending defendants. The amount of money paid to advocates in
the higher courts, the Crown Court, has gone up by something like
79% since 2000. The indications are that that has largely gone
to a small number of long and very, very expensive cases. To make
the system work better we need to reduce the amount of money that
is going to these cases, in part by making them shorter, but in
part by paying less for those cases and redistributing the money
to some parts of the criminal justice system, the defence side
of it, solicitor and barrister, where there is under payment for
the work that is being done and also, I believe, redistribute
some of it to civil Legal Aid as well because over the time that
we have been in Government, criminal Legal Aid has gone up by
37% and civil Legal Aid excluding asylum has gone down by something
like 24%. What you cannot do, in order to solve the problem, is
constantly increase the amounts where there are problems and do
nothing about the bits where there is significant over payment.
The review that we have started, under Lord Carter of Coles, which
is going to report by 31 January next year is addressing the question,
how do you make the system work across the board properly rather
than deal with it on a piecemeal basis. I think the reason why
there is a problem now is because there is a review but, in a
sense, I have called a halt to the piecemeal changes, which I
was doing myself when I was Lord Chancellor in years one and two
and said we need an overall look at the whole thing. It is made
worse as well by the fact there has been an over-expenditure of
£130 million on Legal Aid for this year.
Q83 Jeremy Wright: A number of things
come out of that, can I try and ask you them in turn. First of
all, I suspect much of the Criminal Bar would accept your analysis
that there has been an overspend in relation to high cost cases
and of course there is a separate system of fees in place for
very high cost criminal cases in any event. So far as the graduated
fee system is concerned, which affects the rest and primarily
relates to those cases you describe, which are lower cost cases
where members, particularly of the Junior Bar practice, there
have been cuts, have there not, of a very substantial nature made
effective at the beginning of this month which precede the Carter
Review, why is that?
Lord Falconer of Thoroton: There
were two separate sets of cuts made, one were the things called
"Cracks and Guilties". Cracks and Guilties involved
a situation where there was not a graduated fee, which means a
fixed fee for the amount you were paid when your client who had
started off saying they were going to plead not guilty, then moved
to a guilty plea. Although, there was no agreement reached with
the Bar on figures the Bar, in principle, agreed that we move
from ex post facto consideration of what the fee was to
what was, in principle, a graduated fee for that. Although the
figures are not agreed, the Bar and the Department agree that
we should move from ex post facto to graduated fees for
the Cracks and Guilties. That has reduced the amount of payments
that have been made there, just as it did when we introduced graduated
fees for the not guilty pleas. That is one. The other is that
there has been a reduction, which I announced on July 5 and then
consulted about which comes into effect the same day as the Cracks
and Guilties which is because of the £130 million overspend.
Those are why the two had to be done. One was done as a result
of an agreed process started the year before, the other was because
of the £130 million overspend. I do not know any other organisation,
Mr Wright, that can go on overspending without doing something
to curb it.
Q84 Jeremy Wright: That is certainly
true. I simply asked because your analysis, which, as I have said
I think the Bar would share, is the overspend is primarily occurring
in high cost cases. Are you content that cuts in other cases,
which primarily affect the Junior Bar is the appropriate way to
deal with the overspending?
Lord Falconer of Thoroton: In
relation to those cuts, I specifically sought to target them at
the highest spending cases. I have said to both the Bar and the
solicitors' profession, please advise me if I am wrong on these
proposals as to how I target them at the upper end, and they did
not come back with any alternative proposal. I was very, very
keen that in curbing my expenditure I should do it in accordance
with the analysis that I have given and that is why both because
it is statutorily required and because it gives an opportunity
for the lawyers to say where it should be done, that was the nature
of the discussion I was having from July until September.
Q85 Jeremy Wright: Also, I want to
talk a bit about the impact of the strike a bit more widely. Has
your Department made any analysis of two particular problems which
arise from it: the first being the additional costs to the courts'
service caused by trials which are delayed or even cancelled at
short notice and secondly, and much more importantly, the consequences
for those held in custody of their trials being delayed?
Lord Falconer of Thoroton: There
has not been any impact in relation to the first. The information
I am getting is that it is very sporadic and in a very few places
and there have been no delays of any sort in relation to what
the courts hear. If there is a particular case that cannot be
heard because they have not got a prosecution or a defence barrister
then the list for that particular court simply pulls in other
cases. There is absolutely no suggestion at all that we are losing
any time in relation to that. There is no identifiable extra cost
for the criminal justice system. In relation to those in custody,
I am not aware of any case at the moment where somebody has spent
longer in custody as a result of the problem; you may be but I
am not. All the impression I am getting from reports about it
is that it is pretty sporadic and it is pretty limited in its
effect.
Q86 James Brokenshire: Obviously,
there is quite a lot of anger and some comments that have been
attributed in terms of how this arose. Can you understand some
of the frustration of the Bar when, as I understand it, a review
was promised in May of this year which did not happen?
Lord Falconer of Thoroton: No,
a review was promised for May of this year and it started in July.
I deeply regret that it was two months late and the consequence
of the review starting in July, rather than May, is that it cannot
report until January. There are some months delay in relation
to it. The substance of the review is being delivered. It is a
much broader review than simply looking at the graduated fee scheme
and the VHCC scheme but it is looking at those two things. I am
very interested in what Mr Wright said, he said that the Bar,
by and large, would agree with my analysis of what needs to be
done. It seemed to me impossible to simply review the graduated
fee scheme and the VHCC scheme without looking at the bigger issues
as well. I think everybody now accepts that the funding mechanism
has gone wrong and needs to be changed and therefore the one thing
you should not be doing is applying sticking plasters to bits
of it.
Q87 James Brokenshire: Do you concede
that this a problem that has been brewing for quite some time?
As I understand it, the graduated fee scheme was obviously introduced
in 1997. There has been no increase in the rates that are payable
under that since its introduction, even though inflation has gone
up by quite a considerable amount in that time. The amount has
effectively been scaling down over that time.
Lord Falconer of Thoroton: That
does not reflect the earnings of the individual member of the
Bar. There are two aspects to that. First of all, over the last
few years, although the basic rates have not gone up, means have
been found to improve the payments made to members of the Bar,
for example, by page numbers, by complexity, witnesses, and if
you look at the average earnings of individual members of the
Bar from the Legal Aid fund, they have gone up from an average
of £40,000—this is just from Legal Aid alone—to
£62,000. If and insofar as you are trying to create a picture
of members of the Bar's earnings have been static over that period,
even putting aside the very, very high earners that is not, in
fact, an accurate picture. Some have been, but quite a lot have
gone up quite significantly and quite a lot have gone up quite
significantly at the very bottom.
Q88 James Brokenshire: Obviously,
there is a concern at the junior level that people might be discouraged
from entering the profession as a consequence of the historical
situation we have just touched upon. I was just interested in
one further point, in terms of your announcement on 5 July, in
terms of the changes that were taking place in terms of the various
funding, what consultation or notice was given in relation to
that?
Lord Falconer of Thoroton: There
was none. 5 July was not a decision made, it was a decision for
consultation. On 5 July we embarked on a process of consultation
which ended towards the end of September and we extended, I think
on two separate occasions, the period of consultation so that
both the Bar and the solicitors could make further representations
to us. Can I pick up on your earlier point. I am extremely keen
that there should be a strong independent Bar and a strong independent
Bar which operates the criminal justice system. I would be very
anxious if the numbers at the Bar were dropping. In fact, the
Bar has increased in size by around 40% since 1995. Some of that
is in the civil area but quite significant numbers are in the
criminal area as well. There is no evidence that I have seen that
people are not coming to the Bar, there is no evidence that I
have seen that people are not coming to the Criminal Bar, indeed
the evidence at the moment appears to be the reverse.
Q89 Keith Vaz: Lord Chancellor, what
is the Department's main concern about the current length of complex
fraud trials. Is it the cost of the Legal Aid budgets in these
trials or the complexity of the case?
Lord Falconer of Thoroton: A trial
that lasts over six months seems to me to be a trial that it is
almost impossible to think is as fair as a much shorter trial.
If you are asking yourself if you are a member of the jury, or
if you are a judge, can you remember what was said 18 months ago
by a particular witness, the answer is probably no. The complexity
and the length is not good for justice. Therefore, you have a
situation where long trials that are not the best way of resolving
these issues are also costing lots and lots of money.
Q90 Keith Vaz: Would you save that
money and spend it on another area of the Legal Aid budget?
Lord Falconer of Thoroton: I would
hope to, yes. Mr Brokenshire and Mr Wright have raised issues
of the Junior Bar. It would be possible to deal with those bits
of the fee system, it is not just the Bar it is solicitors as
well, to pay more to them. Also, just as important, change the
direction of travel in relation to the civil Legal Aid budget.
Q91 Keith Vaz: When you last came
before us you made a powerful case for the abolition of one of
the tiers of the immigration appeal system. It is gone, but there
is still a huge backlog, why is there still a backlog in dealing
with immigration cases?
Lord Falconer of Thoroton: There
was always a backlog in relation to immigration cases. I do not
think the abolition of one tier alone was ever going to deal—this
is immigration as opposed to asylum cases—with that. They
need to work their way through it.
Q92 Keith Vaz: Your junior Minister,
at a recent meeting, stated that one of the reasons why the Government
was considering abolishing the right of oral appeal for visitors'
visas was because of the backlog. Is that a justification for
taking away another right of appeal?
Lord Falconer of Thoroton: I think
in relation to visitors' visas, we need to be focusing there on
much higher quality decision making in the first place.
Q93 Keith Vaz: So, it is the Home
Office's fault?
Lord Falconer of Thoroton: No,
I am not saying that for one moment. We all have difficulties
and this is a very difficult area. The number of appeals allowed
suggests that getting better decision making is a good idea which,
may I say, the Home Office and I are as one on in relation to
that.
Q94 Chairman: More appeals are successful
when they are oral.
Lord Falconer of Thoroton: Is
the answer not instead of saying having a two stage process, make
it easy to apply again.
Q95 Keith Vaz: You are appointing
all of these diverse judges, surely they will need something to
do?.
Lord Falconer of Thoroton: I have
more than enough for them to do, Mr Vaz.
Q96 Keith Vaz: What conclusions have
been reached about the experience of broadcasting in courts? Obviously,
they are broadcasting outside when the barristers are on strike,
I am talking about inside.
Lord Falconer of Thoroton: Everybody
agreed in the consultation that it was wrong to broadcast any
sort of court process where you were showing a witness or a victim.
That was probably the same in civil as in criminal because the
effect of broadcasting makes it less likely that people will co-operate
with the process, particularly the criminal justice process. It
seems to me the only outstanding issues that are left are, do
you allow broadcasting in relation to the Court of Appeal, whether
it be the Appellate Courts, whether it be the experiment that
took place in the Royal Courts of Justice at the end of last year
and the other area was would it be appropriate to allow broadcasting
of, for example, the judge passing sentence, and we are considering
the responses in relation to that.
Q97 David Howarth: Can I take you
to the part of the Department's document that is entitled Tackling
the Compensation. The first thing I want to ask you is in
light of the Cabinet Office's Better regulation Task Force document
on the compensation culture which seems to suggest that there
is not a problem, it is just a myth, what is your view about the
current situation? Is there a problem with the so-called compensation
culture?
Lord Falconer of Thoroton: Yes,
I think there is a problem with the compensation culture. You
are right to say that Mr Arculus's report indicated broadly that
the numbers of personal injury claims were going down. The problem
in relation to the compensation culture seems to me to be first,
legitimate desirable activity does not take place because particularly
public sector and voluntarily sector people are unduly anxious
that if they do a particular thing they will be sued. It is not
a myth that it is harder to find people to be, for example, the
people who will take children on school trips. It is not a myth
that there are certain places in the country where you cannot
find councillors because they are terrified of being sued. It
is not a myth that some local authorities do not open bits of
beautiful parkland or beach because they fear that people might
suffer injuries. That is the danger that one needs to address.
One needs to send out as clear a message as one possible can that
we do not want to stop legitimate behaviour because of a fear
of a possible claim and that, it seems to me, is the danger of
the compensation culture at stage one. There is a separate more
identifiable problem of claims farmers who create high expectations
which are then dashed. There is a series of cases, which I am
personally acquainted with, where groups of various industrial
workers have been persuaded to take out loans which are expensive
and have high rates of interest in order to fund the one-off insurance
premium against losing and having to pay the other side's costs,
where there is no consideration being made for a legitimate claim,
they end up with no claim and they end up with a forever increasing
debt. The two things I think we need to do therefore, on the compensation
culture, is send out the clearest possible message that if it
is a legitimate activity as long as you are careful you are okay
and we need to properly regulate those claims farmers who have
been exploiting people in the way that I have described. Those
are the two things I think we need to do.
Q98 David Howarth: Taking the first
of those, you said people are unduly worried. You would accept
that the substance of the law is that where there is no fault
there is no claim and that the House of Lords has been particularly
clear on this in recent years, for example, the Tomlinson
case.
Lord Falconer of Thoroton: You
are absolutely right: what do local authorities think if it takes
to get to the House of Lords to say you are not liable if somebody
dived into a water and got injured when there was a sign saying
"do not dive". The lawyers take great comfort from the
fact the law is clear, which it is. Those people on the front
line in local authorities or those people running things like
the scouts are, in my view, understandably just as worried about
a claim being made as they are about what the courts may decide
at the end of the day. How much does it cost the local authorities
to get to the House of Lords to determine that, as you would say
as an expert on tort.
Q99 David Howarth: They are covered
by insurance hopefully. The question is what the remedy is, which
you are proposing in the Bill. One of the remedies in the Bill
seems to be to say that the law is as the law already is. Is that
not simply a symbolic gesture when the problem must lie elsewhere,
perhaps in the cost regime or in some other aspects of the system?
Lord Falconer of Thoroton: I think
that if the Bill, as a clear clause, says in considering whether
somebody has been guilty of negligence bear in mind that you do
not want to discourage legitimate desirable activity, I think,
that is a sensible message to send through and Act of Parliament.
It indicates clearly to society at large, where you want to strike
the balance.
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