Examination of Witnesses (Questions 180-199)
RT HON
LORD FALCONER
OF THOROTON
QC AND ALEX
ALLAN
28 FEBRUARY 2006
Q180 Chairman: You have kindly written
to us and have responded in detail on some points, indicating
that the present state of your financial systems does not enable
you to tell us about the link between estimate allocation and
PSA delivery. Why?
Alex Allan: There are two points
on that. First of all, in the process of changing our financial
systems we will make sure that the relevant coding is introduced
so that we can answer that question. The second is that it is
actually quite a difficult conceptual issue because, for example,
we have a PSA target dealing with increasing the number of offences
brought to justice. We have another PSA target dealing with reducing
the number of ineffective trials, trials that are aborted for
one reason or another. We have another PSA target dealing with
confidence in the criminal justice system. It is conceptually
quite difficult when, for example, there is an increase in the
funding going towards the Court Service, to say that a specific
bit of funding to the Court Service is designed, for instance,
if we are funding what is happening at the particular crown court,
which of those three different PSAs it should be ascribed to.[2]
2 Clearly, there are some specific projects, and we do some very
targeted work on reducing ineffective trials and that can clearly
be ascribed to a particular PSA, but in many other cases it is
conceptually quite difficult. There are also, of course, other
areas which are not at the moment covered by any PSA targets.
Not all bits of all departments' work are. We do not at the moment
have a PSA target in relation to our work on electoral reform,
and by that I mean electoral administration. That is something
we are looking at for the next spending round so that we can introduce
one that sensibly measures our performance.
Q181 Chairman: It sounds like a significant
slip there. What you were being asked in that area suggested that
you are not working to a PSA target on your desk work on electoral
reform.
Alex Allan: There is not a PSA
target on that.
Q182 Chairman: No, I know there is
not. You imply in your letter that the systems are going to be
changed in such a way that you will be able to be a lot more illuminating
to us in the future.
Alex Allan: I hope so. When I
was preparing for coming to this committee I was asking my officials
how we would do that. I think in some cases it may be that we
can only give an illustration of the areas or that particular
spending will support a number of different PSAs. I do not think
it will be able to say absolutely tidily, "This much money
goes to that PSA", "This much money goes to that PSA".
I think it will be slightly more blurred than that, but we certainly
will endeavour to produce the information in as much detail as
we can and in a way that is most helpful to you.
Q183 Keith Vaz: The last time you
came before the committee, Alex Allan, you said that you would
be attending a feedback session for those who had not been successful
in getting a judicial appointment. Have you done that?
Alex Allan: I do not believe I
said that. I have since the last committee session continued to
make further inquiries about our systems of feedback. As I said
last time and as I think we followed up in the letter we sent,
as a matter of course we do not nowadays give oral feedback to
all candidates. We offer written feedback to all candidates and
I have looked at samples of written feedback so that I can understand
what is being done. We also provide opportunities for people where
at certain events it is possible for them to come in, produce
their written feedback, discuss with one of the assessors the
sorts of points that have arisen and how they might improve their
performance and might succeed in a subsequent competition.
Q184 Keith Vaz: When did you change
the policy of giving oral feedback, because certainly when I last
looked at the form concerning people who apply for judicial appointments,
if you go on to your own DCA website you have in the past given
people the opportunity of an oral feedback. When did that change?
Alex Allan: It changed certainly
before my last appearance before the committee, if not before
the one before, because I certainly explained then that we did
not any more offer oral feedback as a matter of course, and this
was largely because we found that providing written feedback was
normally more effective. It enabled us to be more comprehensive
and clearer and that is the procedure we have now followed for
at least a year.
Q185 Keith Vaz: So have you drawn
any lessons from the process that you have looked at which would
be helpful to the new Judicial Appointments Commission, bearing
in mind that 80 members of your staff will be going to work for
them?
Alex Allan: This is certainly
one of the things we will be discussing with Baroness Prashar
and the other commissioners, and, of course, as you imply, it
will be for them to discuss what feedback they provide for the
competitions that they initiate. As the Lord Chancellor explained,
there is still a number of competitions in train which are shortly
to finish.
Q186 Keith Vaz: How many competitions
are in train at the moment?
Alex Allan: I can give you that
information. There was a list published in a written ministerial
statement that the Lord Chancellor gave. There is a fee-paid immigration
judge of the Asylum and Immigration Tribunal, a deputy district
judge Magistrates' Court competition, a recorder competition for
the South East Circuit, a specialist Chancery judge for the Midlands
Circuit, a specialist mercantile judge for the Midlands Circuit,
and lay members for the Mental Health Review Tribunal.
Q187 Keith Vaz: So that will be completed
by the Lord Chancellor? That will not be handed over because the
competition has begun?
Alex Allan: Those are the ones
that have begun. We will clearly involve Baroness Prashar to make
sure we take her through the processes but those are the ones
which I think are expected to be completed before July 2006.
Q188 Chairman: Just before we leave
the judicial appointments could I ask if you could throw any light
on the situation when you appoint magistrates? You have just mentioned
the appointment of what we used to call a stipendiary magistrate
but it does appear that there is some major hiatus in the system
for appointing magistrates which is not at present due to be handed
over to the Judicial Appointments Commission and that in some
areas the advisory committees, which have traditionally had a
key role in this, are themselves now reduced to two or three members
because appointments to the advisory committees have not been
made pending some other decisions. What is actually happening?
Alex Allan: I was not aware of
the point about appointments to the advisory committees and certainly
we do still, and will for a little time, rely upon advisory committees
to make the appointments. I will investigate that. I did not know
that point.
Q189 Chairman: Has the Government
got any timetable in view for the eventual accommodation of magistracy
appointments within the Judicial Appointments Commission?
Alex Allan: I do not believe a
specific timetable has been set, but if there has been more information
I will let you know.
Q190 Jeremy Wright: I was going to
ask you about Gershon targets and if you could tell us a little
bit about the department's progress towards the targets you have
been set under Gershon. I appreciate, of course, that there is
no such thing as an interim target for Gershon officially, but
did the department set internally interim targets and, if so,
are they being met?
Alex Allan: With regard to the
Gershon targets for the DCA, it may help if I split them into
two different areas.
The Committee suspended between 5.10 pm and
5.25 pm for a division in the House
Q191 Chairman: What I think we will do
is resume, but because the person who was asking the questions
a moment ago has not yet returned from the division we will move
to another area, which is freedom of information. A number of
things have been said by you, Lord Chancellor, about fees. Are
you reviewing the fee regulations? Are you planning a review,
or is this something that was a way of dealing with issues that
have been raised with you?
Lord Falconer of Thoroton: We
always said that we would look at the fees because we have introduced
a regime that basically does not charge for providing information
under the Freedom of Information Act. What it does is set a limit
by reference to time, which is £600 in central government
and £450 outside central government. There are issues about
the extent to which some things that are not currently included
in that £600 should be included. For example, people have
adopted the technique of getting a list of files under the Freedom
of Information Act, then asking for all of the contents of the
file. That, before it can be released, plainly requires somebody
to read the file, which does not seem to me to be legitimate.
The time it takes for a civil servant to read the file is not
included in the time it takes you to get to the £600 limit.
Various government departments are now having to employ people
specially to read files to see whether or not any provisions of
the Freedom of Information Act would affect whether it should
be disclosed or not. The sort of question we need to look at is,
for example, should the reading of the file be included in the
fee.
Q192 Chairman: Is this just an accounting
question so that, for example, journalists who pursue inquiries
of a very detailed kind, their newspapers might well be prepared
to pay that amount of money and the department's budget would
be that little bit less in difficulty, or is it a deterrent to
an ordinary member of the public who is pursuing a genuine case
on a purely personal basis with no financial backing?
Lord Falconer of Thoroton: We
do not want it to be a deterrent to members of the public who
want to exercise their rights under freedom of information. We
set a limit of £600 because there has to be a balance between
providing freedom of information as freely as possible and the
time it takes the state to find that information. Has the balance
been put in the right place? I do not think £600 is the wrong
figure, but is what is included right or not? It is not a question
of trying to deter the public. We are not seeking to do that;
we are simply seeking to get the balance right. If lots of time
was required to do reading, for example, for work that a newspaper,
a magazine or a film company was doing, this does not exclude
the right for them to pay for it if it is over £600, and
that is the accounting aspect you referred to, but that will not
cover every case.
Q193 Chairman: Is the danger not
that you will produce a rule which would not deter, perhaps should
not deter, legitimate inquiries by well-funded newspapers, but
would actually deter the person with a genuine case for whom it
does require effort to go through the files and find out why he
or his father or whoever was badly done to many years before?
Lord Falconer of Thoroton: Yes,
and indeed it is that sort of issue that one needs to look at
in considering the question, "Should you include the cost
of reading the file?". There are two sorts of case, the one
you rightly described, and the other is, "Oh, let us just
get them to go through all of the files, give a separate request
each time; something interesting may turn up".
Q194 Chairman: Is there a review?
Lord Falconer of Thoroton: We
are looking at what we should do about fees at the moment and
we will reach a conclusion, I think, fairly soon in relation to
that.
Chairman: I think we could now return
to Mr Wright's question to the Lord Chancellor.
Q195 Jeremy Wright: We were talking
about extraordinary rendition and particularly how active a duty
it is for the Government to investigate alleged cases. You made
the perfectly fair point that if you compare it with other examples
in other fields where it would be unrealistic for the Government
itself to investigate every single alleged incident it would be
impractical for you to do so in this case also. Is the substantive
difference not that there are, in fact, relatively few specific
allegations of extraordinary rendition and that therefore it is
easier to investigate each of them? In particular, to give you
an example, there was a case of which we are aware reported in
The Independent where there were allegations of American
planes bringing people through this country and using four specific
airports, two of which are in Scotland. We understand from the
Committee on Human Rights that their investigations revealed that
the Scottish police have been making no investigations about flights
travelling into and out of Scottish airports of this nature. Presumably
you would be very concerned to ensure that those sorts of incidents,
where they are raised in the press, where there are specific allegations
made and they are certainly capable of investigation, are properly
investigated?
Lord Falconer of Thoroton: Yes,
but it is for the police to decide whether or not that threshold
has been reached. I would not think it appropriate to say that
every time an allegation is made in the press of a particular
wrongdoing or of extraordinary rendition the police are then obliged
to investigate it. Plainly it is a matter for them as to whether
or not they investigate it. I understand that in relation to one
case the Manchester police were approached and what they said
was, "If you produce material that suggests some wrongdoing
is going on, we would then investigate it". It seems to me
that is the right approach. What you cannot have, it seems to
me, because it will not lead to the right results, is a politician
becoming a police officer. It is for the police to perform that
role and it is for them to decide whether or not the threshold
has been crossed.
Q196 Jeremy Wright: Finally, can
I ask you this: are you satisfied that this is not happening any
more?
Lord Falconer of Thoroton: What
Jack has said in his statement is that four requests were made;
two of them were granted, this was in the mid to late 1990s. I
do not think it necessarily follows from the fact that those facts
occurred that there was rendition for the purpose of torture.
I do not know what the answer to that is. On the basis that the
United States Government always asked in the past, on the basis
they had given assurances, I accept that it is not happening.
Q197 Mr Tyrie: When those assurances
were given did you or the Government ask the US Administration
what the basis was for their definition of torture and their definition
of the likelihood of torture?
Lord Falconer of Thoroton: The
assurances that were given were given in the context of people
transiting through this country and assurances were given in the
context of there only having been the cases to which the Foreign
Secretary gave a response, so the question that you ask does not
arise.
Q198 Mr Tyrie: Let me put it in a
more general way. I think I will have to look back at the transcript
to see if I understood your reply.
Lord Falconer of Thoroton: What
I am trying to say is: are people being rendered through this
country? Answer: we were asked on four occasions, those are the
only cases. I think that is the effect of what Jack has said.
Your question was: does torture mean something different to the
Americans than what it means to us?
Q199 Mr Tyrie: Are you aware of that
difference?
Lord Falconer of Thoroton: Yes,
I have seen statements made on behalf of various parts of the
United States of America that describe various practices which
we would plainly regard as being a breach of Article 3.
2 Note by witness: Increasing offences brought
to justice and reducing ineffective trials are both part of PSA
target 1, rather than being separate targets Back
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