Examination of Witnesses (Questions 300-319)
RT HON
LORD FALCONER
OF THOROTON
QC, SIR MICHAEL
BICHARD AND
CAROLYN REGAN
20 FEBRUARY 2007
Q300 Chairman: Thank you. I was going
to ask you by what tests do you think this Committee, or anyone
else, should judge whether these proposals, if fully implemented,
have been a success if we were to look at them in two to three
years' time?
Lord Falconer of Thoroton: I think
more people are getting help through Legal Aid, either through
representation or by advice, a thriving legal profession, money
being spent much more on the front line than on ancillary stuff
such as travel, waiting, overheads.
Q301 Chairman: That is a complete
list so far as you are concerned?
Lord Falconer of Thoroton: A strong
Legal Aid system.
Q302 Chairman: With a strong, thriving
legal profession.
Lord Falconer of Thoroton: Yes.
I said that, I hope.
Q303 Chairman: You did. In your letter
to us you referred to our own report about the number of people
helped being a key indication of how successful the system is?
Lord Falconer of Thoroton: Yes.
Q304 Chairman: But today, rightly,
you have referred to both elements. Why is speed of implementation
important to you?
Lord Falconer of Thoroton: I do
not think speed is the critical thing; I think doing it in the
right time is the critical thing. Once you decide that you are
going to have a system which relies more on fixed fees than previously
and you are going to move to a market based approach, you cannot
delay it for so long that there is a blight over the solicitors'
profession. You have got to do it in such time as it can be accommodated
by the profession but also in such a time that it does not lead
to blight and, therefore, difficulty in development for the profession:
because for those people who significantly rely on Legal Aid it
will be a significant factor in what they do develop in the future.
Q305 Chairman: But the blight that
you have at the moment and firms making plans which could affect
the future availability of a thriving legal profession is not
simply caused by the time taken to make the decision, it is caused
partly by the perception of what the system is going to be, is
it not?
Lord Falconer of Thoroton: Indeed,
but we are trying to be as clear as we possibly can about what
the system is going to be. The clearer we are, the more people
can make plans about it; and so, for example, views that this
Committee expresses on the scheme will no doubt have an impact,
but I do not think the critical thing is the timing in relation
to it. If people think it is much too concertina'd, then that
will be an issue, but we have listened to consultation, we have
extended the timeframe, for example, the introduction of police
station fixed fees, so we have extended our listening to representations
by people, but it is plainly wrong to think just by stretching
out the time for a long period that somehow eases the issues.
I think the issues are much more about whether or not people think
moving more to fixed fee schemes and there being a market process
to determine who gets the work are the big issues, rather than
the timing.
Q306 Chairman: Is it arguable that,
except for Legal Aid Crown Court defence work and childcare, Legal
Aid spending peaked in 2003-04 and that control is being achieved
now?
Lord Falconer of Thoroton: If
you look at the big drivers, at the moment it is Crown Court defence
work and public law children work, in part because post 1999 a
lot of work was taken out of the scope of civil Legal Aid, so
you see a great dip at that particular point, yes. If you look
at the history of Legal Aid, it goes like that. The one thing
you should not do is the moment you see the figures going down,
you relax and do not try and get a sustainable system for the
future.
Q307 Mr Tyrie: It does sound to me
that if, the costs are going down there, is an indication that
it might be sustainable for the future?
Lord Falconer of Thoroton: What
you have got to try to do is to make sure that you spend as much
money as you possibly can on the front line. Look at the history
of Legal Aid. I cannot do it now by waving my hands around—which
is not very effective—but if you have a moment, look at
the pattern of Legal Aid expenditure. I think the other thing
that we have got to try to do is to increase Legal Aid expenditure
on civil and family stuff. We are being forced into spending more
money on family stuff because of the increase in public law children
cases, but we want to expand the scope of people, particularly
in social welfare law, who can get access to advice when they
need it, and that is the problem we are seeking to address.
Q308 Mr Tyrie: Can I quote you what
the Civil Justice Council have said about this whole process?
Lord Falconer of Thoroton: Yes.
Q309 Mr Tyrie: They said: "The
CJC takes the view that the proposals, if implemented, carry greater
risks in terms of damage to civil Legal Aid provision and access
to justice than the minimal financial improvements to the overall
Legal Aid budget." Could I ask you to comment on that?
Lord Falconer of Thoroton: Yes,
you can. I am not sure, because it is not clear from what the
Civil Justice Council have said, as to the extent to which that
is comment before the family, the mental health, the immigration
and asylum schemes that were proposed had been withdrawn for further
work, but if and in so far as they were making those comments
after those schemes had been withdrawn, then I very much disagree
with them. I think the critical question (and the Civil Justice
Council needs to address this, it seems to me) is if you increase
the amount you are paying for each piece of work, you are reducing
the number of people that you can help through Legal Aid and what
we are trying to do is to focus, as much as possible, on those
who need help, and it is a totally inadequate response, in my
view, to say there are lots and lots of advice deserts and the
way to deal with them is to increase the amount of money you spend
for individual cases because the consequence of that will be unquestionably
to increase, in my view, the number of advice deserts. We are
trying to strike a balance and it is very difficult to do, but
that is what we are seeking to do, and the Civil Justice Council
in its response is focusing entirely, in my view, on the impact
on the provider and not at all on trying to reach more people
to give them help.
Q310 Mr Tyrie: Do you agree that
the proposals would disadvantage London particularly, since London
has a higher cost base?
Lord Falconer of Thoroton: There
is a figure which says—and this is in relation to civil
Legal Aid only—that 68% of providers in London would be
losers, in the sense that they would get less money per case,
and I accept that that is probably a right thing. It is an LSC
estimate. Those are the areas where the advice deserts do not
exist. How do you get people to go to places like the North East,
for example, where there is not advice available at the moment?
The corollary of the 68% number of firms who are losers in London
(and I am not saying this is the only winner), for example, in
the North East is a 77%5[1]
increase. For Wales, which I would simply say because a number
of members of the Committee are Welsh, a 77% increase in the number
of winners. If you are trying—I keep coming back to this—to
reach more people in the welfare field, you need to address the
issue of how much it costs per case.
Sir Michael Bichard: I wonder
if I could add a footnote to that, because there is a feeling
abroad that somehow London is being disadvantaged unfairly in
all of this. It is quite interesting in that the changes that
have been made over the last few years, particularly the introduction
of tailored fixed fees and other controls on expenditure, have
actually led to an increase in the number of people receiving
legal help and, indeed, those figures are now at the highest level,
but, even more interestingly, a disproportionate increase in the
number in London who are receiving legal help. In 2004-05 in London,
if you exclude immigration and asylum, some 91,000 people were
receiving legal help. In 2005-06 that had gone up to over 102,000.
So, I do not think that this sense that London is being disadvantaged,
certainly if you look at the help to clients, is actually true.
Carolyn Regan: Can I add another
point in relation to London? There is also provision for individual
remuneration for difficult cases, and in London that amounts to
10% of the total workload, which is a much smaller volume outside
of London (I think, about 4%) and so there are provisions for
reflecting that. As the Lord Chancellor has said, Wales and the
North East have been mentioned, there is also a desire to target
Merseyside as well, and that is what our next tranche of consultation,
due to come out at the end of next week, will be demonstrating.
Q311 Mr Tyrie: You want to get the
people providing these services in London out of London into other
cities?
Carolyn Regan: We want to rebalance
the expenditure to meet the needs and to meet what people are
saying to us about the needs in the North East, Wales and Merseyside.
We want to keep a sustainable group of providers in London, but,
as has been said, we want to increase the number of clients being
served.
Q312 Mr Tyrie: But a sustainable
group is one that is smaller than the current supply; so you think
there is over supply?
Carolyn Regan: I think there will
be changes to the way suppliers organise themselves, yes.
Q313 Mr Tyrie: Could you debureaucratise
that?
Carolyn Regan: Sure. I think some
of the groups of suppliers will want to come together to bid for
packages of integrated social welfare law across a number of categories.
There is potential for outreach work, subcontracting, different
ways of providing, rather than with the one-to-one relationship
that we have at the moment. I think some of that will be targeted
on areas of greatest need.
Q314 Mr Tyrie: Lord Chancellor, I
do not mind who answers really, but you are in the middle of the
three: have you received a report from Otterburn Legal Consulting?
Lord Falconer of Thoroton: I have
not, but the Legal Services Commission has. I think the right
thing to do is for all of the material that the Legal Services
Commission have got on what the effect on the market may be—and
by "market" I mean the providers, which I think is what
has been particularly interesting—should be made available
to the Committee. So, yes, is the answer. The LSC have, not me
personally, but, yes, they have, and we should provide it to you
for the purposes of your report. We should also provide to you
for the purposes of your report the other material in relation
to what effect it may have on the market.
Q315 Mr Tyrie: Why have you not already
published it?
Lord Falconer of Thoroton: It
has been around for a particular period of time. There is a whole
range of material.
Q316 Mr Tyrie: How long has it been
around?
Lord Falconer of Thoroton: October,
I think. October we received it.
Q317 Mr Tyrie: So it has been around
for five months?
Lord Falconer of Thoroton: Yes.
Q318 Mr Tyrie: Why was it not put
in the public domain at that time?
Lord Falconer of Thoroton: Because
I think that there is a whole range of material that the Legal
Services Commission have. I think the right thing to do is to
make sure it is available in the public domain and, in particular,
for this Committee. We should have published it earlier, and I
apologise for that.
Q319 Mr Tyrie: So it was a mistake
not to put it out five months ago? Was that a "yes"
or a "no"?
Lord Falconer of Thoroton: I apologise.
1 Note by witness: 80% not 77%. Back
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