Examination of Witnesses (Questions 131-139)
RT HON
SIR ANTHONY
CLARKE, RT
HON SIR
MARK POTTER
AND RT
HON LORD
JUSTICE THOMAS
23 JANUARY 2007
Q131 Chairman: Sir Anthony, Sir Mark,
Lord Justice Thomas, welcome. As ever, we are always very glad
to have judges in front of the Committee and we have, as you know,
worked out an understanding of protocols to make it reasonable
and feasible to conduct these kinds of exchanges. We are very
glad to have your presence on such an important matter as this.
You have very kindly provided us with some memoranda, one from
each of you, and it would take too long to go through those directly
but they are of considerable value to us; the members have seen
them and we shall be able to incorporate material from them, some
of which may crop up again as you answer questions. We appreciate
that very much. I wonder whether I could just start by asking
a question which does give you the opportunity to refer more generally
to some of those issues. The Judicial Executive Board has expressed
concerns about the potential impact of the Carter reforms on the
local availability of quality legal advice and produced this phrase
about a "scraping of civil legal aid to the bone". Is
that a sound judgment?
Sir Anthony Clarke: It is perceived
as a serious risk. There are some aspects of the Carter proposals
which do rather worry us and in summary they are really these.
They stem from the concern that all civil judges have that it
is very important to maintain the level of access to justice,
especially for the most disadvantaged members of the community
who cannot really represent themselves and, unless they have publicly
funded legal assistance, they are stuck. At the moment there are
quite a number specialist practitioners, civil legal aid practitioners,
who provide specialist legal services, for example in the mental
health field or in housing, and it is very important that when
these proposals are taken forward these specialists should not
be lost to the publicly funded community as it were. One of Carter's
proposals is to introduce something which is called a CLAC, which
is a community legal aid centre. He has another proposal which
is called a CLAN, which is a community legal aid network. The
difference between a CLAC and a CLAN is that he has this idea
of centres being developed which will be essentially a franchise
where solicitors will be in one place, and one can see the force
of that, provided that care is taken to ensure that in any such
CLAC or franchise or firm there is sufficient specialist knowledge
and experience. It is quite wrong to think that you can simply
put up your flag as a solicitor and say you do civil work, but
actually it is much more complicated than that. If you are an
expert in housing, you may know nothing about mental health and
it is no use having just a generalist and then being expected
to answer any kind of coherent question on mental health. Anybody
who has sat in the Court of Appeal knows that and we have the
assistance of counsel. That is one area we are very concerned
about. I do not know about scraping to the bone—we shall
obviously have to wait and see—but the key features are
to ensure that there is sufficient availability of solicitors
and that involves making sure that they are paid a reasonable
amount. I have nothing to say about the actual numbers, that is
nothing to do with me at all, but it is obviously very important
that these new contractual arrangements do provide reasonable
remuneration whatever numbers are arrived at. There have been
problems in the past with civil practitioners giving up publicly
funded work for economic reasons and it is obviously very undesirable
that that should occur. Perhaps I could add one other thing which
does concern us a lot which I referred to in my note. We quite
understand that these reforms have been led by the problems with
criminal legal aid—the famous black hole in the DCA funds—we
quite understand that something has to be done about that and
there are all kinds of proposals which John Thomas will no doubt
speak to, but these may give rise to quite a radical shake-up
of firms. Maybe they are designed to do that, but at present some
firms do crime, civil and indeed family. If the result of this
shake-up were that some of those existing firms might go out of
business, one does have to ask what is going to happen to the
people in those firms who are presently doing civil and perhaps
also family. That is another worry. One proposal that the Civil
Justice Council has made is that before the civil proposals are
put into force, some monitoring should be carried out of the impact
of the criminal reforms so one can see what impact the criminal
reforms, when they have been working for a bit, have on the overall
situation. Where we would counsel against rushing headlong into
introducing the civil aspects of this, it is really the criminal
parts of it which have caused this problem and it is obviously
something which should be put into operation. We do all urge some
caution and we rather suspect that Lord Carter did not really
carry out any research into this; he obviously could not carry
out much research since of course it has not happened. I do know
the CJC suggested a delay of three years; well that is probably
rather a lot but some consideration seems to us to be desirable.
Q132 Chairman: Is that the civil
judiciary telling the criminal side to go first while you wait
and see what happens?
Sir Anthony Clarke: Yes, but for
what, to my mind, is a sensible and reasonable reason.
Q133 Chairman: If you are putting
yourself in the shoes of a minister, which it is very unfair to
ask judges to do, is there not a sense in which the entire profession
and the judiciary, looking at the sorts of issues you mentioned,
must give ministers the feeling that whatever they try to do to
contain costs, there are very compelling reasons against them.
There is no way they can move.
Sir Anthony Clarke: We would not
support that approach. Of course there are some particular aspects
of these proposals which we very much support. For example, there
is some very good material in the Carter review encouraging non-litigious
methods or approaches, trying to keep people out of the courts.
There are all kinds of ADR schemes about these days and ombudsmen
of every kind which do keep people out of the courts at no cost
to anybody really except possibly their service provider; so there
are areas. Indeed another part of my paper relates to the idea
of the developments and research into something called a SLAS
or a CLAF which you may have seen, which again is very promising
and which we know the DCA is interested in. I would not like to
give the Committee the idea that we are against all these proposals:
we are just anxious that they should go forward in a measured
way so that we can see that the key thing, which in civil is access
to justice, is not imperilled.
Q134 Chairman: Are you worried that
you will get more unrepresented litigants?
Sir Anthony Clarke: We have quite
a lot of them already.
Q135 Chairman: Are the numbers increasing?
Sir Anthony Clarke: Well they
certainly have increased. Again, you will see in the passage in
my paper entitled "History", which describes the way
in which legal aid has been reduced radically from civil over
the years, that the trouble is that civil is rather the poor relation
really. I reckon that governments, not just this Government, are
interested 85% in crime, about 12.5% or 13% in family, leaving
poor old civil coming on behind and we can see that in what has
happened over the years. Actually people with problems which give
rise to civil dispute, especially in the mental health and housing
fields, are extremely worthy of assistance and indeed may come
from the very same families who find themselves before the criminal
courts, so we are worried. In answer to your particular question,
since that happened over the years there has been a big increase
in litigants in person and it is very difficult for them. I wonder
how many of us indeed could afford legal assistance, but that
is another question.
Q136 Chairman: And is peer review
a potentially robust mechanism to deal with any risk of drop in
quality?
Sir Anthony Clarke: I think so
myself; I do not know what John thinks.
Lord Justice Thomas: Advocacy,
it is a much more difficult topic to assess. As Professor Cape
said, one of the problems of peer review is that it is fine for
looking at paper, but if you try to use peer review in court,
it is extremely expensive because someone actually has to go and
watch an advocate or watch someone at a police station. As you
know, sometimes hours can pass and an advocate might have very
little to do. So looking at quality, which is very, very important
to us as judges, we have tried to look at a system where people
provide evidence of their competency, because that, as a system
for quality review, is probably very much better as a means of
ensuring, particularly if you go for competitive tendering, that
you get people of sufficient quality to do the cases that come
before the courts. Quality is one of our real concerns.
Q137 Keith Vaz: Do you think there
is a role for the judiciary in picking up on advocates, solicitors,
who do not meet the quality mark? Do you think that the judges
themselves should report them to their regulatory bodies?
Lord Justice Thomas: As you can
see from my report, I have chaired a committee which looked at
a new framework for quality and we are very happy to say that
we have reached a framework we can put to the profession. The
essence of this system is that the quality will rest in the hands
of the profession and the new professional standards board who
will delegate to firms and to sets of chambers the monitoring
of quality: for a particular level of case you have to demonstrate
that you are of sufficient quality to do it. One of the suggestions
made is that evidence will be required by those who assess the
quality and of that evidence, people will be able to put forward,
as they do for example for silk, statements from judges as to
the quality. We are looking at it more from a point of view of
trying to make certain that the standards of quality that you
get—and the CPS has a system that is not dissimilar—will
produce quality rather than judges being placed in an invidious
job, which is not really their own, of policing this. Carter took
the view, with which we agree, that it really is the profession's
job to monitor quality. However, we wish to help them and help
them in setting up the scheme and we should have a continuing
involvement in the overall operation of the scheme and also in
providing an evidence base for the operation of the scheme. Obviously
if some advocate behaves grossly improperly, it has always been
the case that the judges have reported them to the relevant standards
board.
Sir Anthony Clarke: That was really
what I was going to say. It is not really practical to require
judges to have a tick-the-box thing for every advocate who comes
before him, to say four out of 10 for cross-examination, one out
of 10 for examination-in-chief. However, the judges have always
had the role that John just referred to, namely that if you have
an advocate, or a solicitor for that matter, who has behaved in
some way which the judge thinks merits reporting to the regulatory
authority, whether the Bar or a solicitor or indeed an expert,
then the judge has always been able to do that.
Q138 Keith Vaz: I am sure you have
seen the lecture given by Lord Justice Wall in Cardiff where he
says that from the President of the Family Division downwards,
the response has been clear, well informed, powerful and unanimous.
There is unanimity amongst the profession and the judiciary that
the implementation of Lord Carter's proposals would have a devastating
effect on the practice of family law. That is pretty strong stuff
from a senior judge. I assume you agree with him.
Sir Mark Potter: I agree with
almost everything he said, but there is one respect in which I
should like to make my position clear and, if I may, by way of
a correction to a question put by Julie Morgan, make this point
clear. So far as Carter's report is concerned, if it is carefully
read, I as part of the judicial input into it, have very little
quarrel with it, but the real point is that the proposals in Legal
Aid: a sustainable future are a betrayal of Carter, they are
not consistent with Carter. Carter, who's wife is a highly respected
chair in the Family Proceedings Court at Wells Street, knows a
good deal about family law proceedings; I have no doubt over the
breakfast table, if not as a result of formal evidence. He was
quite clear when speaking to us and he makes clear in his report
that he was approving a system of graduated fees because of his
recognition that, particularly in public law proceedings, there
is a large number of tasks, there is a large number of imponderables,
there may be a large number of hearings rather than a small number
of hearings and, in particular in the case of children's solicitors,
if they are acting properly, they will be required to do a great
deal of work which does not appear in the protocol. The courts
are peculiarly dependent upon these expert children's solicitors
for case management. The judge can say what is going to happen,
but when he says there must be experts' reports, what he does
is to rely on children's solicitors to get in touch with the experts
to draft the joint letter and keep things moving, to keep the
local authority up to the mark, to spend often many hours of time
in managing and moving the case forward. It is these solicitors,
these specialist solicitors, who are the people who are going
to fall out as a result of the proposals in Legal Aid: a sustainable
future, which does not provide for what are technically known
as graduated fees. Graduated fees are fees which have a basic
fee but allow you to move up, whether by an hourly scale or by
some other increment, according to the extra work that you have
to do. It is a series of extremely crudely averaged fixed fees
which says that for step one in the protocol, whether you act
for father, mother or child, you will get X pounds and so on.
The whole thing has to be radically revised.
Q139 Keith Vaz: Let me get this right.
The original proposals were okay as far as you are concerned,
the principles are okay. It is implementation that is going to
have the devastating effect on family law. Is that right?
Sir Mark Potter: Yes; it is.
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