Examination of Witnesses (Questions 120-139)
RT HON
LORD FALCONER
OF THOROTON
QC AND ALEX
ALLAN
28 FEBRUARY 2006
Q120 James Brokenshire: Just to come
back to you on the issue of price, and I heard what you said,
do you accept in any way that a move from an hourly based rate
to a fixed fee will have any qualitative impact since lawyers
will be, one might argue, less prepared to go the extra mile because
they know that their fee is being capped in some way?
Lord Falconer of Thoroton: I think
lawyers are by and large professional. They want to do a good
job. I think the effect of it being done on a fixed fee rather
than an hourly rate is that there is some incentive there to ensure
that cases are dealt with within a reasonable time, because we
have seen cases go on for much too long. It is not only lawyers;
it is a whole range of issues that cause that, but if you have
a system of payment that provides an incentive for cases to be
dealt with within a reasonable time then I think that is what
will happen.
Q121 James Brokenshire: I take it
therefore that that is why you stress this emphasis on ethos and
professionalism, because if you are on a fixed fee type of arrangement
(that is not to say that this would happen) some people might
be prepared to cut corners if things have gone on longer or become
more complicated than they were expecting, and that might have
a qualitative impact on the service thereafter once you discover
that.
Lord Falconer of Thoroton: We
have got to be astute to ensure that quality is maintained. Whichever
system you choose, fixed fee or hourly rate, we can all see round
the room that there is a pressure in each of those arrangements
for something that might not be the best result in terms of what
is the best way to deal with a case. Whichever system you have,
you have to be sure you have measures to ensure that quality and
professionalism are maintained.
Q122 James Brokenshire: Now that
Lord Carter has completed the first phase of his report do you
expect to reach an agreement with the Bar to preclude any recurrence
of the "strike" that took place in the autumn of last
year?
Lord Falconer of Thoroton: The
next stage in the process is for Lord Carter, having produced
his interim report, which as it were sets out the principles that
he wants to adopt in criminal legal aid, to have detailed discussions
with the Law Society, with the Bar and with other legal service
providers and try to reach an agreement in detail about what happens
for fee schemes for this year, next year and the year after. What
I am hoping to see is an agreement with the professions, in effect
brokered by Lord Carter, for a detailed way forward.
Q123 James Brokenshire: But from
where you sit at the moment do you think that the outcome is looking
more positive?
Lord Falconer of Thoroton: Very
much so, yes. What is very significant about what has happened
is that Lord Carter produced his interim report, which is a very
significant document, because it talks in practice about restructuring
the supplier market, and there were some voices that said this
was a bad thing but both the Law Society and the Bar Council gave
it guarded support.
Q124 James Brokenshire: What effect
do you expect the proposals set out in the White Paper The
Future of Legal Services: Putting Consumers First to have
on the independence of the legal profession?
Lord Falconer of Thoroton: I do
not think it will have any detrimental effect on the independence
of the legal profession. David Clementi's report, which was the
foundation of the White Paper, says that one of the things that
regulation has got to achieve is to ensure the independence of
the legal profession because an independent legal profession is
a necessary concomitant of a state that lives by the rule of law.
The proposals that are made in the White Paper and which will
be translated into a Bill before Parliament ensure the independence
of the legal profession and I think both the Law Society and the
Bar Council accept that view.
Q125 James Brokenshire: It has been
suggested that this does present a serious threat to the independence
of the legal profession. Can you see where that argument might
come from?
Lord Falconer of Thoroton: I can,
and the argument is based upon the proposition that if the Government
appoints the Legal Services Board and the Legal Services Board
in effect supervises the Law Society and the Bar Council, which
are the front-line regulators, the Government, the argument goes,
has the ability to control those who control the lawyers. The
answer to that is that the Bill has to contain provisions which
make people completely comfortable but that the people who appoint
the Legal Services Board are independent of the Government and
have no connection with, as it were, the political state before
the appointment is made, very much in the way that the Judicial
Appointments Commission will appoint judges from April in a way
that I think people have confidence is entirely separate from
the political Government.
Q126 James Brokenshire: And therefore,
if there are questions about the robustness of those proposals,
that is something that you will consider very carefully to ensure
that that model works?
Lord Falconer of Thoroton: Yes
indeed. I think that is a very important point. I think people
have to have confidence that the independence of the legal profession
is preserved and I believe that our proposals do that, but that
is plainly something that, as the Bill goes through Parliament,
people will want to be sure we have effectively delivered.
Q127 Jeremy Wright: If I can take
you back to Carter, you said, and I think you were right to say,
that the Bar has given the first stage of Carter a cautious welcome,
but, of course, the second stage will tell them how much money
they are going to get, which is where they will really become
interested.
Lord Falconer of Thoroton: But
they are quite interested in this bit.
Q128 Jeremy Wright: Well, vaguely
interested, I am sure. When the money bit comes into the forefront
of our consideration will it be at the forefront of the Government's
mind to look again at the balance between fees for senior counsel
in the longer cases and fees for junior counsel in the shorter
cases which, as you will know, is the concern primarily of the
junior Bar? That is going to be another live issue, is it not,
when Carter reports on the figures?
Lord Falconer of Thoroton: These
are the issues that Lord Carter has to deal with in broking with
the Bar and the Law Society how the cake is divided, and the cake
has a finite size which all the participants in the discussions
know. You will recall that one of the foundation beginnings of
the process was that in a sense very big cases are overpaid but
there are some parts of the process where both solicitors and
the Bar are underpaid and there needs to be a redistribution throughout
the system in order for it to be a fairer system of payment. However,
it is also important to remember that there is a sense—and
this is borne out by the figures—that civil legal aid has
gone down as well and there needs to be some money from the criminal
legal aid payments taken and given to civil legal aid. You are
absolutely right to say it is a difficult second bit that needs
to be done and money does tend to focus people's minds but, having
set out the principles, there is now a basis of agreement in principle
which I think will make the second process easier.
Alex Allan: One of the points
in Lord Carter's first report is that for the revised graduated
fee scheme for advocacy services the base fee should incorporate
the majority of the ancillary payments that are currently made
and a single advocate should take responsibility for all payment
of the advocacy elements of the case, so in that sense looking
towards giving options for rebalancing to the advocate who is
accepting the single payment.
Q129 Chairman: You will probably
be aware that we had an evidence session with the Legal Services
Commission about Specialist Support Services.
Lord Falconer of Thoroton: Yes.
Q130 Chairman: We are going to publish
a report about that probably in ten days' to a fortnight's time,
but you may have been made aware of the evidence session which
did raise some quite interesting questions.
Lord Falconer of Thoroton: I have
read the evidence of Mr Harvey.
Q131 Julie Morgan: Lord Chancellor,
I am particularly concerned about the quality of legal advice
that people receive in the future, especially those on legal aid,
and the proposed withdrawal of the Specialist Support Services
I think casts a real shadow over what quality of legal aid will
be available. We received evidence last week, as the Chairman
has said, from the Legal Services Commission and we were left
feeling that this was definitely a step in the wrong direction.
I wondered if you had had any consultation with the Legal Services
Commission and whether there was any way this decision by the
Legal Services Commission could be looked at again.
Lord Falconer of Thoroton: First
of all, as far as consultation is concerned, it was a decision
made by the Legal Services Commission. The facts on the process
plainly need to be looked at. Looking at the facts, it appears
to be that the position was that from 2000 to 2004 there was a
pilot scheme. In 2004 it was decided that the scheme would be
rolled out across the country. Three-year contracts were then
entered into which would have ended in, I think, the spring of
2007 or the middle of 2007. It appears that within eight or nine
months of those contracts being entered into some sort of process
then began which led to six months' notice being given under these
contracts. Looking at those basic facts, I have a concern that,
having piloted this, having then entered into three-year contracts,
it is odd that a decision was then made or contemplated quite
so quickly to stop the three-year contracts before the three years
were up. It gives me cause for concern, that such a strange change
occurred. Having said that, the position of the Legal Services
Commission is that they want to try to focus as much civil legal
aid as possible on the front line. They have a point when they
say that if you go to a lawyer and then that lawyer goes to another
lawyer you might be duplicating the cost of what the Legal Services
Commission is paying for. If, for example, CLS Direct, which is
the telephone service, can put you directly in touch with the
specialist provider, that may ultimately be cheaper than going
to one of their recognised lawyers who then rings up one of the
specialist providers that you have been referring to. I do not
think it is open and shut that this is the best way to provide
the service but, as I say, I am very concerned about how the conclusion
was reached that that was the right thing to do.
Q132 Julie Morgan: I am sure you
aware that there was an evaluation done of the service which said
that it was very good, and it was decided that there should be
mainstreaming of the Specialist Support Services.
Lord Falconer of Thoroton: Yes,
and that is what happened, as I understand it, and then the six
months' notice was given, and I also noticed that Mr Harvey in
his evidence said words to the effect that everybody who had been
asked about the services said they were good and beneficial. I
do not think, on the basis of the material that I have seen, that
anybody could reach any other conclusion than that the specialist
services were doing a good job and providing a useful service.
That seems to me to be beyond argument. The only issue seems to
me to be, is there some area of overlap? As I understand it, the
issue is, could you get access to the specialist services without
the need for another possibly cost-bearing legal provider intervening
between the two?
Q133 Julie Morgan: Certainly all
the evidence given us by the front-line advisers, including many
of the voluntary organisations, was that access to the Specialist
Support Services saved an enormous amount of time and provided
very good quality expert advice very quickly, which in fact has
increased their ability to serve people.
Lord Falconer of Thoroton: That
seems to me to be completely beyond argument, that they obviously
providing a very good service to the voluntary sector bodies.
If you look at the list of who they are, even after you have confessed
that your daughter works for one of them, they are high quality
service providers, and I do not think anybody can dispute that.
I did not understand Mr Harvey to be disputing that the quality
of what they were doing was high and that they provided good quality
advice to people who needed it. As I say, it appeared to me to
be a value for money issue and, as I say, I am very concerned
about the way it was done.
Q134 Chairman: You have obviously
had concerns about the process. The evidence that we have received
clearly was equally concerned about the process but was even more
sharply focused on the gap that might be left. When we publish
our report, which will be as soon as we can get it turned round,
may we take it that you will look both at the report itself and
at the issues about the availability of specialist services?
Lord Falconer of Thoroton: Your
hearing has led to this being focused on as an issue. I do not
know when you are going to publish your report but, irrespective
of your report, it seems to me that (a) because of the process
and (b) because the substance of the issue seems to me to be whether
you can provide equivalent quality of service by some other means
which might be cheaper, that needs to be considered, but I need
to consider both those issues. I should say, without in any way
seeking to discharge my own responsibility for this, and I have
some responsibility for this because Ministers were aware it was
going to happen before it happened, that it is an LSC decision,
so it would need to involve consultation on my part with the LSC.
It is not something where I can simply reverse the decision. Discussions
will need to be had, but I undertake to the committee, irrespective
of what might be said in your report, that I will look at it now
both on process and on substance.
Chairman: And the report we hope will
be with you within about ten days to a fortnight.
Q135 Keith Vaz: Lord Chancellor,
the working relationship between the judiciary and the Government
has changed dramatically since you have been in office. You have
given away a huge number of powers to the Lord Chief Justice.
There were grumbles from some parts of the judiciary about the
way in which matters were being dealt with. Has that all settled
down? Are you getting on with the judges now?
Lord Falconer of Thoroton: Yes.
I think there were grumbles. If you remember 12 June 2003 when
the judges discovered that the Lord Chancellor was going to be
abolished—
Q136 Keith Vaz: Lord Hope was at
Edinburgh Airport.
Lord Falconer of Thoroton: Some
of them were apparently in transit at the time it happened. It
was an unfortunate way to do it, I regret that it was done that
way and it made for real difficulties. From where we are now I
think there is a much, much better relationship with the judiciary.
I think the judiciary have been constructive and extremely positive
in the way that they contributed to the making of the new arrangements.
I think as well, since the new arrangements have been constructed,
senior members of the judiciary are involved in quite a number
of executive processes. There is a judge on the executive board
of the DCA, he sits as a non-executive, but he is a member of
the board. There is a judge, again who sits as a non-executive,
on Her Majesty's Court Service. I think the relationship between
the judiciary and the state is now good and positive. I think
it is, in large measure, a tribute to the judges but I also think
the executive has now got a much steadier relationship with the
judges than they might have had a year or two ago.
Q137 Keith Vaz: One of the most significant
changes that you have made has been the establishment of the Judicial
Appointments Commission, although you continue to appoint judges
until the commission has started its work. What is the current
timetable for when they will take over this decision?
Lord Falconer of Thoroton: The
Judicial Appointments Commission will start to be involved in
the appointments process from 3 April 2006. There is a Chief Executive
of the Judicial Appointments Commission, there is a Chairman of
the Judicial Appointments Commission and there are 14 other commissioners
who have also been appointed. The system set up by the Constitutional
Reform Act basically involves the Judicial Appointments Commission
making a recommendation to the Lord Chancellor who has then got
very, very limited powers to say no. The Judicial Appointments
Commission from 3 April will basically appoint all judges where
a new competition is involved. The Chairman of the Judicial Appointments
Commission, the Lord Chief Justice and myself have agreed transitional
provisions where I will continue to appoint judges where the competition
was started some time ago and that will continue until at the
latest the spring of next year. Every new competition that comes
on-stream will then be the responsibility of the Judicial Appointments
Commission.
Q138 Keith Vaz: It is a fact, is
it not, because we heard from your junior minister in the House
today, that there will be at least 80 members of staff from the
DCA being seconded to the new commission?
Lord Falconer of Thoroton: That
is correct.
Q139 Keith Vaz: How independent can
it be seen to be when so many of your own staff are going to be
working for them?
Lord Falconer of Thoroton: There
is a lot of hard work that goes into the appointment of judges.
We need a new way of doing it, there will be new leadership in
the way that it is done from the commission. There also, inevitably,
needs to be continuity. The actual processes, which are complicated
and have built up over time, need to continue reliably. It is
for the commission, as time goes on, to determine how they want
to change that. I have absolutely no doubt whatsoever they will
be totally independent.
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