Examination of Witnesses (Questions 100-114)
RT HON
LORD FALCONER
OF THOROTON
QC AND ALEX
ALLAN
18 OCTOBER 2005
Q100 David Howarth: Does it have
the danger that since the judges have already said that it will
give a signal to the judiciary that that is as far as we need
to go, and they are obviously developing this area more in the
direction you want already. It is a risk that will stop the development
of the law in precisely the way you want it to go.
Lord Falconer of Thoroton: I think
quite the reverse. If you put that into a statute and make it
clear you want to ensure that legitimate activity is not discouraged
it would have precisely the opposite effect.
Q101 David Howarth: We will see on
that. Can I take you to public bodies. You say in the document
that you have a particular concern, you have already raised this
particular concern, with public bodies. Of course, again the doctrine
is very favourable to public bodies, there are barriers put in
the way of suing public bodies that do not exist for private bodies.
Again, it seems to me the problem is a practical one rather than
a doctrinal one. What proposals are coming out of your discussions
about this matter with other public authorities?
Lord Falconer of Thoroton: Again,
there are lots and lots of things that one needs to do like, for
example, provide more favourable insurance regimes, so we are
in discussions with the ABI and the insurance industry generally.
One needs to look very carefully at things like rehabilitation
of people who are injured to ensure that if there is a problem,
rather than looking through a claim, it is perhaps getting better
that one is looking at. There needs to be greater information
in relation to public bodies. All of those steps need to be taken
and I do not want it to be thought that we are only thinking that
legislation is the answer, but just as much in relation to private
or voluntary sector bodies there needs to be a single legislation,
so there needs to be for the public body as well it seems to me;
the same point applies there.
Q102 Julie Morgan: The Government
says that it will regulate claims farmers. I think there is evidence,
particularly in the field of housing disrepair, that tenants have
a very poor service from claims farmers, often are not getting
as much damages as they would have if they had gone to court and
often not even being indicated that they might be entitled to
Legal Aid. I am wondering what the Department can do about that
and would it be possible to require a claim farmer by law to carry
out a Legal Aid eligibility test and if a person is eligible for
Legal Aid to refer them to a solicitor who has got a standard
mark?
Lord Falconer of Thoroton: I would
have regarded it as being an indication that you were not doing
the best for your client if you did not consider can you get Legal
Aid because it seems to me you are, in a sense, advising a client
not necessarily to get what is the best advice. I would certainly
regard that as indication of them not being suitable, that would
certainly be something that I think the regulators of claims farmers
should have in mind.
Q103 Julie Morgan: Yes, I think this
is happening, quite widely.
Lord Falconer of Thoroton: I am
quite sure it is, I have absolutely no doubt that it is happening
and in some areas it is a deliberate policy to keep the client
away from a lawyer. Some people might think that is quite a good
thing to do, but in quite a large number of cases that is most
certainly not the right thing to do.
Q104 Julie Morgan: You would regard
this as something the regulator has got to do?
Lord Falconer of Thoroton: Certainly,
I would regard that as something that the regulator has got to
deal with.
Q105 Chairman: If I can move to the
Department as a Department, perhaps I will call you Secretary
of State for a moment, in order to ask you whether you are still
having quarterly meetings with the Chief Secretary of the Treasury
which were brought in when the Department was put under special
measures?
Lord Falconer of Thoroton: I do
seem to see the Chief Secretary quite a lot. I cannot guarantee
it is quarterly but it feels at least that regular.
Q106 Chairman: Are you under closer
financial scrutiny than other Government Departments? You seemed
to suggest last time when you reported on the subject so desirable
were special measures, that like ASBOs everybody should have one
because you get such splendid mentoring and monitoring, or ought
we to conclude that the Department is still requiring some special
attention?
Lord Falconer of Thoroton: I think
you have to ask the Treasury that. I have regular friendly meetings
with the Chief Secretary to the Treasury. I do not know what he
does with other Departments. It seems sensible, in relation to
all Departments, the Treasury should keep closely linked with
each individual Department. That is not a way of getting out of
the question.
Mr Tyrie: It is!
Q107 Chairman: It sounds like that.
Lord Falconer of Thoroton: Mr
Tyrie is saying it is, it is not.
Q108 Chairman: Mr Allan, perhaps
you could help with the definition. Is the Department under special
measures distinctive from those in other Departments?
Alex Allan: I do not believe formally.
I am not too sure about whether even that procedure exists in
that way. It is not obviously just the Lord Chancellor meeting
the Chief Secretary, there are enormous amounts of contact between
officials as to what the prospects for spending are.
Lord Falconer of Thoroton: I have
got a much better answer now. I think you will find this very
refreshingly frank. DCA was placed on special measures following
a reserve claim in 2002-03. The increased reporting measures,
which were agreed between the Treasury and the DCA, were very
successful throughout 2003-04 and 2004-05 and have now been adopted
as standard practice across the Government. We were on special
measures but they now apply to everybody.
Q109 Chairman: I wish you had told
us that before.
Lord Falconer of Thoroton: I wish
I had known that before.
Q110 Chairman: Do you see that you
have had to face some rather difficult challenge with integrating
into the Department a number of completely wholly different functions.
You have taken effectively the Scottish Office and the Welsh Office
in some respects. The Department has assumed many responsibilities
it did not have before. What can you tell us?
Alex Allan: Most of the functions
that have been taken on are not wholly novel to the Department.
The great bulk of increase in staff has come from taking the magistrates'
courts into the Department creating a unified HMCS, which we have
given evidence about before. Clearly, we had experience of dealing
with that. Equally, looking ahead, we are setting up a single
tribunal service and we will be taking on more and more tribunals
from other Government Departments into the Department. These are
not wholly novel areas. The Scotland Office and the Wales Office
operate reasonably autonomously. Clearly, the Department, as a
whole, has a very big interest in the devolution settlement in
the aggregate level but the Scotland Office and the Wales Office
advise their respective secretaries of state on the day to day
matters there.
Q111 Chairman: Can I raise one rather
specific issue before changing to another question which I am
going to ask Mr Wright to put in a moment. You have said quite
a bit about the reform of the Coroner Service recently. Have you
seriously contemplated putting into the departmental budget a
system of full-time coroners across the United Kingdom. The geographical
spread which the coroner service currently provides is with quite
a significant use of part time coroners. Is that factored into
your future budget considerations?
Lord Falconer of Thoroton: You
are right to identify, and I know this Committee is aware of the
wide ranging proposals made for coroners' reform by Mr Luce and
Dame Janet Smith. Put aside the question of death certifications—which
has got nothing to do, in a sense, with the coroners—what
would be desirable would be as national a series of standards
and as national an organisation as possible. You are completely
right, to introduce, as it were, that the most extreme proposals
on that spectrum would be quite impossible in financial terms
in our current budget. What we need to do is identify what is
desirable on the spectrum and what is possible in financial terms
as well and we need to strike a balance in relation to that. We
do need to act in relation to coroners. We have got to act in
a way that is do-able within our budget and we cannot do a complete
national system, completely transformed but we can take certain
steps I believe.
Chairman: Perhaps we will come back to
that on another occasion.
Q112 Jeremy Wright: Just before we
leave the question of the departmental budget, can I ask you one
question which you may not have the answer to now but I am sure
the Committee would be interested to hear it in due course and
that is about the exhibit system of automated court information.
I do not know whether you can tell us, but how much has or how
much will that system cost?
Alex Allan: I am not sure I have
the total cost. It is funded partly out of the criminal justice
IT programme which is shared among all the departments. I do not
believe I have got a figure to hand for the individual cost of
XHIBIT, we can certainly send you that. It is proving very successful
as it is being rolled out and it provides a huge amount of additional
information and it is not just the display screens in court buildings
which let people know what is happening in individual courts,
which is clearly a benefit. It is also very much wider benefits
when, for example, individual witnesses, for example police officers
can be informed by email or by text message when they are going
to be needed and as a result they do not have to spend so much
time waiting in court rooms. It has got much better facilities
for getting information about results in court straight out to
the relevant prison service or probation service. I think it is
a technology that will have huge applications in the future and
will very much improve the operation of the criminal justice system.
Q113 Jeremy Wright: I think it would
be interesting to know how much it costs and how much, if at all,
that exceeds the original estimates for it. The other questions
that I wanted to ask, which we may deal with reasonably briefly,
are in connection with court fees and the increase there has been
in court fees which may not be entirely unrelated to the departmental
budget issues, I do not know. Has the Department made an assessment
of what the impact of that increase in fees has been, whether
in particular there has been any detrimental impact with regard
to access to justice?
Lord Falconer of Thoroton: We
are consulting on the increase in fees. You are right to identify
that there is a principle in relation to civil and family justice
that subject to those people that cannot afford it, it should
recover its own costs. That is what we have got to seek to do.
If we do not do it, if we do not increase fees, the consequence
is that savings have got to be made in other areas, for example
in relation to Legal Aid. It is not something that one would want
to do, but one has got to do it. What effect does it have on claims?
There is a study that has been done by solicitors that says one
in three solicitors says that they know of a claim they have not
made as a result of the fees at the moment. If you look at the
increase in fees it is quite difficult to see what sorts of claims
are actually being blocked by either the current fees to which
the study is related or would be in the future. The ones, I think,
we need to really keep an eye on are the family ones where I think,
particularly in relation to contact applications, where the fee
is going up from something like £20 or £30 to £120
or £130, we need to listen very closely to what is being
said and in particular ask the question is there Legal Aid on
the exemption provisions which would mean you would not have to
pay sufficient to ensure that access to justice is not being unduly
affected, but we need to listen to that very carefully.
Q114 Jeremy Wright: The final point
is this, in relation to the efficiency measures, which the Department
is looking to put through so far as the court services are concerned,
what impact do you think that is likely to have on court fees
over the next two or three years?
Alex Allan: It certainly should
not. Increasing fees would not be an efficiency saving. We have
plans and we will be developing more plans for improving the efficiency
of the court service, and in particular, realising the benefits
from bringing together the magistrates' courts, the crown courts
and the county courts into a single unified court service. Certainly,
increasing fees is not in itself an efficiency measure.
Chairman: Lord Chancellor, Mr Allan,
thank you very much indeed. We look forward to seeing you again.
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