Examination of Witnesses (Questions 380-394)
RT HON
LORD FALCONER
OF THOROTON
QC, SIR MICHAEL
BICHARD AND
CAROLYN REGAN
20 FEBRUARY 2007
Q380 Dr Whitehead: My point is that
in other instances of best value tendering, when you agree a tender
contract you have a contract which is valid both for the circumstances
that you find yourself in at the time of bidding for the contract
and the period of the contract and that changes are not made during
the period of the contract. Are you suggesting that there, therefore,
would be a different form of best value tendering contract which
would have to stand, notwithstanding what may have been done by
the department in the meantime, which could not perhaps, in all
honesty, have been predicted by those firms that are tendering?
Sir Michael Bichard: I am not
making any statements about how the process is going to be designed.
The point you have raised is clearly one of the issues that we
want to talk through with the profession.
Q381 Dr Whitehead: As far as travel
costs are concerned, you have included travel costs in those fixed
and, indeed, graduated fee schemes. Do you think that would disadvantage
providers in rural areas, particularly where they have relatively
mobile vulnerable clients and, therefore, the travel costs are
much higher but the travel costs are included within fixed fees
across the board?
Sir Michael Bichard: The Chief
Executive may want to comment on the detail of this, but actually
what we have done is to take particular account of the problems
in rural areas.
Lord Falconer of Thoroton: We
have not included travel costs in rural areas.
Carolyn Regan: It is only included
in the 16 urban areas.
Sir Michael Bichard: So, again,
we have listened to what the profession has been saying to us
and we are particularly conscious of the problems in rural areas.
Q382 Dr Whitehead: But you have not
included it for the tailored fixed fee replacement scheme for
non-family civil work, for example.
Carolyn Regan: I would need to
clarify that.
Q383 Chairman: Do you want to check,
in which case you can come back?
Carolyn Regan: Yes. I need to
clarify that.
Q384 Dr Whitehead: Looking at fixed
fees also in terms of the context of waiting, there have been
concerns that waiting is pretty largely outside the control of
the providers. It can range from a variety of waiting experiences,
if that is a fair description of the process of waiting, depending
on what is happening at court, for example, and yet the element
of waiting in fixed fees is itself fixed. Is that fair, do you
think?
Lord Falconer of Thoroton: There
can be a variety of causes for waiting. We think the right thing
to do, even in the 16 urban areas, is to include waiting as part
of the fixed fee so that there is as much incentive as possible
on one of the players to try to make the waiting as little as
possible, recognising that it is not entirely within their control
but it helps to reduce waiting. What we have done is include some
element for waiting. It is a fair way of doing it. It provides
an incentive, as much as it is possible, for the solicitor to
reduce the waiting.
Q385 Dr Whitehead: But the waiting
is not entirely within the solicitor's control?
Lord Falconer of Thoroton: Not
entirely, but there is a bit built in to give him a bit of compensation
for waiting. If you build it into the fixed fee then surely the
incentive there is to do as little waiting as possible. Insofar
as they can reduce the waiting they will try to do so.
Q386 Chairman: When are we going
to hear about these things that you have withdrawn to consult
further on, like family, mental health, asylum and immigration
fees, and also those that you are consulting on anyway, such as
the crown court litigators' graduated fee scheme. We are awaiting
details on all of those, are we not?
Carolyn Regan: The next raft of
consultation on the civil side that you have mentioned, including
family, immigration and mental health, is due out at the beginning
of March for consultation of six weeks and three months on the
funding code. That includes the revisions which have been mentioned
before in relation to the comments from the pre-business consultation.
On the crime side, the consultations were launched on 12 February
and I think you have had a package of papers on those. There is
another piece of work we need to come back on, which is the quality
indicators and scheme which again will be at the beginning of
March, so roughly at the same time as the civil consultations.
Q387 Chairman: So it is quite tight
for the business plan, is it not?
Carolyn Regan: It is quite tight
at the moment, but it is also not due to take effect until October
of this year, so part of what we have done is to consult slightly
later but to produce the changed regime in October rather than
April which was the original proposal.
Q388 Chairman: We are not going to
complain about you listening to the questions or carrying out
further consultation but there is a concern, I think, that it
will be very difficult for them to make the necessary changes,
especially if it involves recruiting people.
Carolyn Regan: Yes. Can I make
two other follow-up points? One is that the other piece of work
that is coming out at the same time is the overall family strategy
which looks at the context for these changes and the fees specifically,
and the other question that was asked was about waiting and whether
it has been included or not in the civil fees. I made the point
on crime that travel and waiting is only included in the urban
areas. On the civil side it is usually the clients going to the
providers or the suppliers.
Q389 Dr Whitehead: This is a question
to Sir Michael and Carolyn Regan. You have just published a consultation
paper on 12 February dealing with new solicitors' panels for very
high cost crime cases. In that consultation paper it appears you
have proposed a categorisation of big prices, that is, approximately
three ranges of big prices. If you are an interested firm for
bidding to get onto the panel you will have to enter a bid on
the basis of one of those high, low or medium prices. Within that,
as it were, operating laterally across each scale, those firms
will be graded according to threshold competence and above, and
a suggestion of the document as far as I understand is that, as
it were, those on the panel and bidding will be filled up on the
basis of who bids in the lowest category with the highest competence,
who bids for the highest competence in the second category and
so on, and that therefore in general terms "price drives
competence" appears to be the process by which the bidding
will be undertaken. Is it your view that that represents value
for money or does that represent, as it were, the trumping of
money over competence, ie, if you are a really good firm but you
come in the high category, but you are not such a good firm and
you come in the low category, one will trump the other?
Carolyn Regan: I think what this
represents is an ongoing piece of work which is partly driven
by the fact that 5% of the overall budget is taken up in these
very high cost, very long cases. The two points I would make at
this stage are that we are looking for teams of people to bid,
solicitors and barristers, and over time we will move to a different
very high cost cases panel in terms of the peer review process,
but at the moment this is the system we have got. The second round
will be open price once we get to a higher quality standard, so
this is an interim move towards going to a follow-up round with
higher quality.
Q390 Dr Whitehead: And this is because
you do not have a robust VHCC peer review mechanism in place at
the moment?
Carolyn Regan: This is because
we have a robust peer review for level 3, which is what we are
saying people need to apply on at this stage, and, as we have
said in all our documentation, the intention over time is to increase
the quality standards and to move towards peer review level 2.
Q391 Dr Whitehead: This document
has appeared just for VHCC.
Carolyn Regan: Yes.
Q392 Dr Whitehead: Is it the suggestion
that that might form something like the blueprint for wider competitive
tendering for non-VHCC cases in future, subject to the peer review
arrangements that you have suggested?
Carolyn Regan: We have said in
discussions with the professional bodies that we are looking to
increase the quality standards over time from level 3 to level
2, so yes, it is applicable to other things and not just very
high cost cases.
Sir Michael Bichard: But there
are particular circumstances which apply to VHCC cases. As far
as criminal competitive tendering from 2008 is concerned, we have
said that we will allow three peer review level 3 companies to
bid initially but that we will want to move that up to only allowing
level 1 and 2 to bid in the second round, and as far as civil
is concerned, which will not start until 2009, we would be looking
for competence levels 1 and 2 from the beginning, so our intention
is to drive up quality at the same time that we improve value,
though with a peer review process you could take that even further
in five, 10 or 15 years' time as more and more firms become higher
and higher quality, so you can fix the bar at a different level.
There is no question of this being a way of driving down quality.
As I said earlier, everything the Commission has done in the last
10 years has been about driving up quality. This has got to be
a combination of quality and price and value.
Q393 Dr Whitehead: But is it not
the case under these suggestions that if you appraise your bid
so that you know you are a very good firm but, partly because
you are a very good firm, your tendering is not necessarily coming
in at the lowest level, you will therefore, as it were, join the
back of the queue in terms of filling up the bid process because
you are not in the lowest category and therefore quality will
lose out, not come to the fore?
Sir Michael Bichard: I would not
take this as a model that we are going to introduce for the rest
of the system. There are particular circumstances here. We are
having to do it earlier than we are doing it for the rest of the
system. We have to take account also of issues of experience and
capability in these very high cost cases, so we have had to try
and design a system which I think is more complex than we would
have liked and I do not think you should take that as a model
for what is going to happen with other criminal and civil in 2008
and 2009. That is something which we want to discuss further with
the profession, as I said earlier. That is a debate which we have
not yet even started.
Q394 Dr Whitehead: So it will not
be a wider model?
Sir Michael Bichard: It will not
be the model for the rest of the system. I would very much doubt
that it is and, as I say, it is the subject of consultation.
Chairman: There is a division in the
Commons. We would like to put a question to you in writing about
black and ethnic minority issues. Thank you for coming today.
We look forward to seeing the Lord Chancellor next week on Wednesday
with the Attorney General.
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