Examination of Witnesses (Question Numbers
136-168)
Rt Hon Sir Nicholas Wall, Rt Hon Sir Anthony May
and HHJ Robert Martin
February 2011
Chair: Sir Anthony, Sir
Nicholas, Judge Martin, we are very glad to have you with us this
afternoon to help us with the work we are doing on access to justice.
We obviously recognise that you all hold very senior judicial
positions which will affect the kinds of things on which you want
to comment or perhaps how you want to comment on them but we will
fully understand that. There are two members who might have interests
to declare.
Mr Buckland: Thank you,
Chairman. I have been a practising barrister for nearly 20 years,
primarily in the field of criminal legal aid. I still have a practising
certificate but I don't have any new cases at the moment. I sit
as a Recorder in the Crown Court.
Yasmin Qureshi: I was
a barrister before becoming a Member of Parliament. I still am
but I have returned my practising certificate. Before that, I
received receipts from criminal legal aid as well as from some
civil work that I used to do.
Chair: Thank you very
much. I now turn to Mr Buckland to start the questioning.
Q136 Mr Buckland:
Yes, thank you. We are focusing today, gentlemen, on access to
justice and the potential impact of the proposed legal aid reforms
to that. I would like to open with some general observations with
which you may be able to help the Committee. It has been said,
and in fact the statistics seem to bear it out, that we are spending
more per head in England and Wales on legal aid than in other
comparable jurisdictions, whether they be common law or jurisdictions
within Europe. I would be grateful for any thoughts you may have
as to why that should be, first of all.
Sir Anthony May:
We are here, I hope, to speak on account of our respective major
jurisdictions. I am President of the Queen's Bench Division and
I am here principally on account of the Administrative Court,
Sir Nicholas Wall is here on account of the Family and Judge Martin
on account of Tribunals. We obviously have experience of other
parts of the business and I dare say that criminal legal aid is
a contributor to the large amount of money that is spent on legal
aid. I would not myself reckon to say very much about criminal
legal aid today.
Mr Buckland: Very well.
Sir Anthony May:
I would, however, say that I think there are diverse reasons for
the expenditure of legal aid in various parts of the judicial
system and they are not all the same. I am personally convinced—and
this is a personal statement and not a representative statement—that
one function which necessarily increases expenditure, be it legal
aid or private expenditure, is the time that cases take. We have
had clear experience over the past 10, 15, perhaps 20 years, where
cases which, 20 years ago, would take three or four days are now
taking two or three weeks.
In some parts of the justice system there is
also a multiplication of complexity and a multiplication of the
number of parties. It is fairly obvious that if you have a very
complex criminal case with six defendants, each of whom is separately
represented, you are going to have six lots of legal aid on a
case which, shall I say, if it were more economically prosecuted
would not be so expensive and would not last so long. That is
a statement outside my specific sphere but I think all of us have
experienced that.
When it comes to the Administrative Court, cases
in that court on the whole do not last a very long time. Cases
in excess of a day are relatively rare, but expenditure on legal
aid where it exists in the Administrative Court occurs in large
measure because there are so many cases. One case lasting a day
is going to cost a day's amount, but 5,000 cases each lasting
a day are going to cost a great deal of money, particularly where
some of those do not come to court.
I don't know whether the President of the Family
Division would like to enlarge on that.
Sir Nicholas Wall:
The only point I would add in addition is that there has been
a very substantial increase in the volume of work in the Family
Division in the last few years, particularly in the public law
sphere and, of course, that is outwith our control.
Judge Robert Martin:
It may, in part, be a function of the amount of legislation and
regulation. I can give you a specific example from my own tribunal,
which, two years ago, was dealing with something like 240,000
cases a year. This year we expect to reach nearly 400,000. The
main driver in that increase is a Government programme, Welfare
to Work, and the conversion from incapacity benefit to employment
and support allowance, which has driven most of that increase.
Q137 Chair: I have
been toying with the thought that the Departments which created
a great deal of extra work should perhaps be a source of funds
for the costs arising from it. If it had been on their budget
they might start to notice.
Judge Robert Martin:
In the case of the Department for Work and Pensions it does, in
that the Ministry of Justice, to my understanding, cross-charges
some of that; but where there might be scope for change would
be if the charge made reflected the quality of the original decisions
that are coming before the tribunal.
Q138 Mr Buckland:
That was a very interesting comment you made about the cross-funding.
I don't know whether, Judge Martin, you may be able to help us
on where we can get hold of those figures, because on the most
recent analysis of legal aid for 2008-09, for legal help with
regard to welfare work, I think just over £27 million was
spent by the LSC on legal help. The proportion for legal representation
was dramatically smaller than that, it is fair to say, but I thought
that figure was quite striking. I don't know what your view is
on that.
Judge Robert Martin:
Striking for its modesty?
Q139 Mr Buckland:
I thought, first of all, the difference between representation
and help was striking, but what it said to me—and you may
correct me if I am wrong—is that far too often the error,
the mischief if you like, is further back in the system. There
are errors within the DWP and the whole system itself, which then
have to be ironed out by the lawyers. Would that be a fair characterisation
of the situation?
Judge Robert Martin:
I think so. A theme that ought to occur throughout the consultation
paper is to make intervention in terms of public funding where
it will have the most consequence. That might be towards the start
of any dispute or case rather than further down the line, because,
if it can be resolved very early on in that process, it is probably
cheaper and to the benefit of all concerned.
Q140 Mr Buckland: As I
say, if you do have access to those figures we would be very grateful.
Judge Robert Martin:
I will endeavour to forward those to you.
Mr Buckland: I am very
grateful, Judge Martin.
Q141 Chair: You
might be interested to know that in previous times the Committee
did look in some detail at the work of entry clearance officers,
particularly because the large number of successfully challenged
decisions suggested there was something wrong with the decision-making
process.
Judge Robert Martin:
Yes.
Q142 Mr Buckland:
Following on from that particular area, I have mentioned the figures
about legal aid being higher than other jurisdictions. The converse
of that, as shown by a study commissioned for the Ministry of
Justice by the university of York fairly recently, showed that
in contrast to other countries, the costs of judicial administration
and the courts were lower. Do you think that the proposed cuts
to legal aid could have an impact upon costs within the court
system?
Sir Anthony May:
Yes, I do, and I think it is variable between the jurisdictions
that we represent. If public funding of claims in court is reduced,
there will be an increase in the number of unrepresented litigants.
On the whole, there are some very good unrepresented litigants,
who present and prepare their cases well, and who concentrate
on the main issues, but there are a large number of them who do
not and who therefore necessarily increase the time and, to some
extent, the expenditure that the court system has to spend on
them. It is, however, I think, variable between jurisdictions.
Sir Nicholas Wall can tell you about what happens in the Family
jurisdiction.
I am fairly clear that, if there was a reduction
in public funding of classes of case that might come to the Administrative
Court, yes, there would be an increase in the number of unrepresented
litigants, but it would, to some extent, be balanced by a reduction
in the total number of cases with which the court had to deal.
It is quite clear that in some respects litigation is engendered,
at least in part, by the very availability of public funding,
and if public funding was not available some of these cases would
not reach the court at all. That may be a good thing or it may
be a bad thing. It would certainly be a bad thing if meritorious
cases were unable to be brought when they should be brought, but
the experience we have is that quite a large part of our statistically
difficult list is occupied by cases of little merit. If some of
those never arrived, there would not be much detriment to access
to justice. The Family position, I think, is different.
Sir Nicholas Wall:
In family law, if public funding is removed from private law applications,
which is plainly on the cards, then there will be a massive increase
in litigants in person. If you want maintenance or to be maintained,
or you want to have contact with or look after your children,
you are not going to be prevented from doing so by an absence
of public funding.
We are doing our best in the private law programme
to ensure that, at the first point with any child case, the District
Judge and the CAFCASS officer attempt to resolve the issue, identify
the issue and, if necessary, settle it. There is undoubtedly going
to be a cadre of insoluble cases which are going to take much
longer. They are going to be much more difficult to try and the
litigants in person will proliferate. I think it is quite clear.
The Green Paper does not recognise that as a problem, which undoubtedly
does exist. Every day of the week, if you talk to any judge who
tries family cases, you will find parents appearing in person.
Sometimes, in a very difficult case, the child is represented
but the case takes longer and it is much more difficult. You have
to explain; you can't take shortcuts. You have to explain, to
be courteous, and cross every "t" and dot every "i",
and that takes a great deal of time. It will take more time in
the family justice system.
Q143 Ben Gummer:
I would like to follow up on that. I do not want to put you in
a difficult position, but the Ministry of Justice has claimed
to this Committee and to others that the offset, as they have
suggested, in the time that you will spend on litigants in person
will be effectively balanced so that the cost of the court in
time and money will be equal. Everyone but the Ministry of Justice
has professed some surprise at this. Do you agree with them or
not?
Sir Nicholas Wall:
I share the surprise.
Sir Anthony May:
I share the surprise in part, because I do think that to some
extent there will be a balancing out. I think the likelihood is
that if legal aid was withdrawn in Administrative Court cases
one needs to identify what they would be. You would get an increase
in unrepresented litigants and those individual cases would take
longer and require more court, judicial and administrative time.
But I do actually believe that there would be fewer cases.
Sir Nicholas Wall:
One of the other difficulties of course is ancillary relief. Private
law is not limited to the choices of children. It is a question
of money. If married parents separate they want to sort out their
finances. One of the aspects which disturbs me most is not only
the proposed withdrawal of public funding from that whole sphere
but also the fact that legal advice will not be available. We
in the family justice area rely very strongly on the lawyers to
give sensible, practical, down-to-earth advice which settles cases.
Most people settle their cases. It is only a minority who fight.
But, with the absence of any advice, it seems to me the likelihood
is that more cases will be contested. More cases will be contested
on the basis that they have no legal representation. That will
take longer, be more difficult and will slow the whole process
down very substantially.
Q144 Chair: I was
wondering if Judge Martin thought the position of unrepresented
litigants was different in the tribunals sphere, given that many
were surely created on the assumption that they would not require
representation.
Judge Robert Martin:
The position varies across tribunals. At the moment legal aid
is not available for representation in many tribunals. In the
Social Security Tribunals, 72% of appellants are not represented
at the moment. I think the proposal to reduce legal help will
have a big change. It will not affect the number of appeals that
go forward as much, but it will change the nature of them. We
will see more people with cases with no prospects of success because
they have not been filtered out, as they are at the moment through
good advice. We suspect that many citizens with winnable cases
will not reach the tribunal because, again, they are not getting
the effective support at that early stage. The absence of legal
help also means that cases will tend to be less well prepared
for the tribunal, which will extend the amount of time we have
to invest in the case to make sure that a good outcome is reached.
Q145 Mr Buckland:
Can I put some questions specifically to Sir Nicholas because
they relate to private family law and you have already touched
on it? This Committee is particularly interested in the focus
in the Green Paper upon the definition of domestic violence. It
seems, on the basis of the Green Paper proposal, that that is
going to be a key, if not the key, criterion for the determination
of whether or not a case is in scope. It has not escaped this
Committee's notice that there seem to be several definitions of
domestic violence, to say the least, between different areas of
Government and in particular disciplines. I would be very grateful
for your view as to where we are with the definition of domestic
violence. What is your view of it and what do we need to do to
create a better and clearer criterion?
Sir Nicholas Wall:
I think the Government is very ill advised to concentrate on violence
in the context of domestic violence. "Domestic abuse"
is the term which we currently use because much domestic abuse
is not violent. It is psychological, often financial and emotional;
it is not physical. There is a perverse incentive, it seems to
me, in the proposals put forward in the Green Paper that people
will be obliged to take out injunctive proceedings against a former
spouse. They will be obliged to litigate in order to open the
gateway to legal aid. As you know only too well, so much domestic
abuse is hidden. It is not brought into the public domain. It
is not brought forward into police action. It is not brought into
prosecution. So there is a perverse incentive not only to litigate
to obtain an injunction but also to make allegations of domestic
violence as opposed to abuse in order to open the gateway to legal
aid. I think that is very detrimental.
Equally detrimental is the fact that we won't
apparently be good enough, according to the Green Paper, to settle.
Most injunctions these days are dealt with by way of undertakings.
A man will frequently say, "I undertake not to assault or
molest in the future, irrespective of my conduct in the past."
That undertaking is accepted by the court and the case proceeds
on the basis of that undertaking. That will no longer be possible.
We will be forced into litigation on injunctive issues, and if
the Green Paper stands we will be forced to deal with abuse in
terms of violence, but abuse is much broader. The ACPO definition
of domestic abuse is much, much broader than physical violence.
Indeed, common sense dictates that. We all know that domestic
abuse is much broader that domestic violence. It is most unfortunate,
it seems to me, that the Government has concentrated on violence
in this context.
Q146 Mr Buckland:
What would you make of the other issue that there seems to be
a lack of clarity about whether it should be violence between
adults as opposed to involving the children of the family?
Sir Nicholas Wall:
Absolutely. At the moment, as I read the Green Paper, it is limited
to the applicant. Of course much domestic abuse is directed at
children and third parties, and it seems to me there is a lack
of clarity in the proposals. I would be very reluctant to see
a system which denies access to justice to the most needy people,
who are in desperate need of assistance because they are the victims
of abuse but they have not ticked the right boxes or gone through
the right hoops.
Q147 Mr Buckland:
As I read it, the criteria involve a time limit of 12 months.
In the preceding 12 months there would have had to be proceedings.
Conceivably, on 31 December 2009, if there had been concluded
proceedings then and violence or abuse on 1 January 2011, there
would be a problem in terms of scope.
Sir Nicholas Wall:
I read it the same way. All deadlines produce anomalies, but at
the moment one deals with a case purely on the basis of merit
and judges are usually very good at assessing merit. It troubles
me that this is an artificial standard being imposed.
Q148 Mr Buckland:
There has been much discussion again about mediation. I would
be very grateful for your assistance here. Where in the system
do you think that could come in, and can mediation operate without
legal help? In other words, could it just be a direct alternative
to any legal input?
Sir Nicholas Wall:
Mediation works best with legal help. Most mediators will tell
you that, I think. They like their clients to have good legal
advice, particularly if you are dealing with all issues in mediation
and you are mediating on money as well as on children. The Government
is very keen on a pre-action protocol, which means that anyone
who is applying for a private law order has to go to a meeting
or seek a meeting with a mediator, if it can be arranged, within
so many miles and so many days of issuing the application. That
may take some people out of the system.
Mediation is simply one of many very good alternative
dispute resolution procedures. As I have already mentioned, many
of the mediators get their mediations because, at the first appointment,
the Judge, District Judge or CAFCASS officer says, "Why don't
you try mediation to resolve this dispute? It is much better that
you should do so." Mediation is one of the factors in alternative
dispute resolution, but it is by no means a panacea. To be fair
to the mediators, they will say to you it is not a panacea. They
will say it is very good for a particular category of case where
both parties are willing to discuss the issue frankly and openly
and make concessions. It is not a panacea in any sense of the
term.
Q149 Ben Gummer:
On that point, the Lord Chief Justice—I do not want to misquote
him—has suggested that the adversarial system is not helpful
in almost any circumstance in the resolution of private family
law cases. How can we fill the gap, therefore, between that suggestion
and the idea that mediation would solve everything, or not? Of
course, that is what the Lord Chancellor has picked up on in his
submissions to Parliament.
Sir Nicholas Wall:
There are times when the adversarial approach is inevitable. For
example, if you have to make a finding of facts, then you have
to have the two cases put before you and decide between them.
There is no alternative. We have long recognised that in many
family law disputes, particularly relating to children, the adversarial
system is unhelpful. It encourages parents to recriminate and
use their children as ammunition on a battleground. That is why
we have introduced the private law programme, why we have parenting
information programmes and why we encourage mediation and alternative
dispute resolution.
One of the difficulties the family law system
operates under is that it was grafted on to the common law system
and has inherited a lot of its aspects. We are the first to recognise
that certain aspects of those do not fit with family justice.
That is why, as I say, we have gone for alternative dispute resolution
and why the judge in a family case, as opposed to a Queen's Bench
action, may be much more inquisitorial than the traditional role
of the judge, which is simply to sit back, listen to the argument
and the evidence and make a decision. Judges manage cases; they
intervene in cases much more. Of course, I suspect with litigants
in person we are going to have to try and do even more than we
have done already.
Q150 Chair: Is
there scope to take that further? Could that be done to a greater
extent and thereby reduce the requirement for a whole series of
representatives: one for each parent, one for the child, and all
to argue over things which the judge could surely perfectly well
ask the parties?
Sir Nicholas Wall:
In private law proceedings the child is very rarely represented.
Only if the case is one of extreme difficulty is the child separately
represented. Private law disputes tend to be parent against parent.
As I say, all the effort is going into alternative dispute resolution.
If it fails, and it will fail in a number of cases, then there
will be no alternative but for the judge to decide the issue.
You will be left with this cadre of very difficult family cases
on which we will have to adjudicate. They will take time and they
will be slow, difficult and expensive.
Q151 Ben Gummer:
Can I press you again on that? The point is that you said it has
been grafted on to the common law. Is there something that we
could do that is rather more radical about the distribution of
family justice than just to accept we have to have an inquisitorial
system?
Sir Nicholas Wall:
Of course, we are waiting for the Norgrove review. Judges in public
law cases are already case managers taking a much more active
inquisitorial role. There is a recognition that in private law
cases ADR has a very substantial role to play. The difficulty
is, what is the alternative? Is the judge to become a French inquisitorial
judge, who gets off the bench, goes round and opens the fridge
and has a drink with the child in the home? We are where we are.
We are part of a common law system. My mind is entirely open on
that, but that would be a very radical change if we were to hive
ourselves off and become exclusively inquisitorial.
Q152 Yasmin Qureshi:
As somebody who is very much a champion of the adversarial system,
in relation to family law matters there is talk about civil legal
aid, but is it not right that in the last two or three years there
have been a lot more cases where children have been taken into
care which has resulted perhaps in a lot of money being spent
in civil legal aid funding for family law cases? I have certainly
had experience of a lot of councils saying to me that they have
taken a lot more children into care as a result of the Victoria
Climbié and Baby P case. Has that not been one of the factors
that has increased the amount of civil legal aid?
Sir Nicholas Wall:
It has increased the amount of public funding—there is no
doubt about that—but there is no proposal in the Green Paper,
I am relieved to say, to interfere with that. When the State intervenes
in the life of a child the parents have a right to be represented,
as does the child. The child is always separately represented
in public law proceedings. The State has to justify removing the
child from parental care and there are very clear criteria laid
down for that.
What is surprising about Baby P is that one expected
a peak after Baby P, but one has not had it. There has been a
peak and it has been maintained. One expected a peak and then
a trough again and for things to go back to normal, but they haven't.
The work has increased exponentially throughout the period since
Baby P. I don't know whether that has been the same in other fields,
but certainly it has caused enormous difficulties in public funding
because, as you rightly say, a huge amount of money has had to
be spent on local authority intervention and these cases are all
publicly funded. Local authorities have become much less risk
averse.
Q153 Yasmin Qureshi:
Discussing areas of law which the Government is proposing that
legal aid will not cover any more such as education, employment,
housing and immigration, it has been suggested by the Legal Aid
Practitioners Group that the proposal to remove funding for education
would cause a lot of problems, because at the moment 92% of education
cases are successful and the majority of them relate to young
people with special educational needs. Would you fear that there
would be a real adverse effect on certainly that particular area
of the law if legal aid was taken away?
Judge Robert Martin:
Yes. I agree that it will have a major impact on the Special Educational
Needs Tribunal. It is a high rate of success, but what would count
as success is any change in the original decision which is of
benefit to the appellant. Without legal advice, because representation
would not be covered, there is a risk that more polarised positions
would be taken and there would be less willingness to compromise
or go down the mediation route. The unadvised litigants in person
would not really be in a position to evaluate an offer that had
been made or compromise their intent to say, "Well, we go
for the whole aim of our claim." There will be adverse effects,
not only because it may make it more antagonistic, but in my view
because it would leave the unrepresented appellant feeling that
the proceedings have been less than fair because of an inequality
of arms. On the one side, the local authority will have access
to educational experts and will have reports prepared. On the
other, you are put in that defensive position of only being able
to challenge or dispute someone else's evidence. You would not
be in a position to put forward alternative proposals by being
able to afford your own expert evidence. So I think it will have
an adverse impact.
Q154 Chair: Isn't
a 92% success rate an indication of an appalling decision-making
process by the body against which the appeals are being made?
Judge Robert Martin:
It may be that the local authority takes the view that the child
concerned doesn't warrant any special assistance. The parents
may feel that the child should have 24 hours a week special teaching.
If there is a success in gaining one hour, then it may rank as
"success". That might reflect that it has changed the
original decision but only partly in favour of what the appellant
would see as a fair outcome.
Q155 Yasmin Qureshi:
Continuing on from that, we have the Immigration Tribunals where
quite often there are quite complex issues such as nationality,
asylum and others. Do you foresee that, if there wasn't legal
representation, that may lead to possibly more appeals and applications
for judicial review to the Divisional Court?
Judge Robert Martin:
Yes. Perhaps we could take that in two parts.
Sir Anthony May:
Could I try to deal with that? It is quite complicated, and I
hope you will forgive me if I give some background and expand
on the question a little. The Administrative Court two years ago,
in the calendar year 2009, had nearly 16,000 claims of various
sorts. Of those, about 7,500 were asylum claims or similar. When
I became President of the Queen's Bench Division, the Administrative
Court was in danger of being overwhelmed, administratively, by
asylum-related litigation.
The Government legislated by, among other matters,
repealing section 103A of the Nationality, Immigration and Asylum
Act 2002. That alone had been responsible for about 5,000 of the
7,500 cases before 2009 which were classed as reconsiderations.
They were, in essence, last ditch—perhaps that is not a
very fortunate expression—or end-of-the-road applications
attempting to establish a claim for asylum where that claim for
asylum had failed before the Secretary of State, had failed before
the Asylum and Immigration Tribunal, as it then was, and had failed
in an appeal system. The form in which those cases came until
two years ago was by means of reconsideration applications under
section 103A.
At the same time as the Tribunals Service was
set up in its modern form, with First-tier Tribunals and Upper
Tribunals, the Asylum and Immigration Tribunal went to the tribunals
system and there was grafted on to it the standard First-tier
and Upper Tribunal appeal system. In asylum cases, that is supposed
to operate, in the main, with the Secretary of State's decision,
an appeal to the First-tier Tribunal, an appeal to the Upper Tribunal
if permission is granted—I am sorry to be a bit complicated
but it is quite important to get to the end of this—and
then, if there is a point of law which should go beyond, an appeal
to the Court of Appeal. That would be an orderly progression of
appeals in cases where permission is granted through the tribunals
system up to the Court of Appeal, and the Administrative Court
would not enter into it at all, thereby reducing this very large
number of cases coming to the Administrative Court.
It was shown that the nearly 16,000 cases in
2009 reduced to 13,500 cases in 2010. But there has grown up a
kind of surrogate version of the reconsideration application,
the administrative burden of which we now have to shoulder, which
are applications by failed asylum seekers who are on the verge
of being removed by UKBA removal activity who apply, very often
at the last moment within just a few hours before the plane is
about to depart, to a judge of the Administrative Court seeking
a stay on their removal. Sometimes we have to deal with 20 or
even more such applications every day when there is a chartered
flight going out of Gatwick, Stansted or wherever it is. These,
as it were, are a substitute inflow of these latter-day applications,
a large number of which have no merit whatever but a few of which
do have merit. Let us say that 85% of them—that is a figure
I rather pluck out of the air but it is of that order—are
of no merit and are in cases where an appropriate decision-making
process, including an appeal and the opportunity of applying for
a second appeal, has taken place.
Against that background, you have the proposal
that the Government has put forward to remove legal aid in immigration
cases but to retain it in asylum cases. In the main, the cases
that I am talking about are asylum cases, but the critical point
is that at the moment the law is that you cannot bring judicial
review proceedings to the Administrative Court from a refusal
of permission to appeal from the lower First-tier Tribunal to
the Upper Tribunal. That applies just as much in immigration cases
as it does in asylum cases.
That is the law in England and Wales, but it
is not the law in Scotland. The Scottish courts have reached a
different decision on this particular point. The disparity between
the law of England and Wales on the one hand and Scotland on the
other is coming up for decision in the Supreme Court in March.
If the Supreme Court decides that Scotland is right and England
is wrong, then there will be the opportunity for all these cases
which used to be reconsiderations to come by way of judicial review
to the Administrative Court.
I am sorry to have taken so long, but this is the
point. In the legal aid context you have one fact and one prospective
possible fact. The last-minute applications in the case of charter
flights are brought with the benefit of public funding and would,
unless a change is made, as I understand it, continue to be brought
with the benefit of public funding. These are cases that have
been through the system, where 85% of them are of little or no
merit. I personally think that consideration could properly be
given to whether some mechanism might not be found to moderate
the availability of public funding in that respect. That is the
first point.
The second point is that, if the case of Cart
in the Supreme Court is decided to the effect that Scotland
is right and England is wrong, then, because the proposal is that
judicial review will continue to qualify for legal aid, all these
applications which we can foresee would happen would qualify for
legal aid and you would get a whole lot of immigration cases—at
the moment the proposal is that they should not have legal aid—getting
legal aid not because they were immigration cases but because
they were judicial review applications.
If you want my tentative suggestion as to how
the first of those problems might be dealt with, it would need
mature consideration. There is a well-worn procedure in the Court
of Appeal Criminal Division in relation to applications for leave
to appeal to the Court of Appeal Criminal Division where the leave
has been refused by a single judge on paper. The system is that
public funding for the first instance proceedings for a defendant
in criminal proceedings who is convicted and sentenced extends
to the giving of advice in relation to an appeal and will therefore
sustain the lodging of an application for leave to appeal to the
Court of Appeal Criminal Division. That happens every day of the
week. If that application fails on paper, the application can
be renewed orally before the full CACD, but that is at risk as
to public funding. The way it works generally is that the application
is made without the benefit of public funding. If it succeeds,
public funding will, generally speaking, be granted for the succeeding
appeal, but if it fails the lawyers don't get paid for what they
have done.
I don't see why an equivalent system couldn't
be put in place in relation to these late asylum applications.
They are actually applications for a stay in an asylum case. So
the proposals would result in them being publicly funded as they
are at the moment, but if that particular variety of application
did not qualify for legal aid, unless it was successful and the
judge said so, then the amount of legal aid on those cases would
be reduced by about 85% and there are 5,000 of those cases every
year. It seems to me that that is a proper means of doing it.
I have to declare, as it were, that my administrative
interest is to reduce the number of these cases. That has nothing
to do with how they should be decided. We just have an influx
of these cases that it is very difficult to deal with. In a sense,
by virtue of my office, I have an interest in that, but it seems
to me that that is something which should be considered. I am
sorry to be so long.
Q156 Chair: No,
it is a very interesting point. It causes me to muse as to whether
the Secretary of State and the Lord Chancellor are represented
in the Cart proceedings in respect of potential costs arising
from the outcome.
Sir Anthony May:
I am sure that the Secretary of State is deeply interested in
the Cart proceedings.
Q157 Mr Buckland:
As somebody who has been in the Court of Appeal in criminal cases
with both scenarios, Sir Anthony, either having had leave granted
after refusal by the single judge or not—in some cases where
I have had to return home empty handed—your suggestion has
a lot of merit. Do you think that could be extended to other areas?
I know that, generally, there is a permission procedure when it
comes to applications for judicial review, but could that principle
be extended to other areas in this review?
Sir Anthony May:
I am sure one can think about it. All judicial review proceedings
require permission. Generally speaking, if an application for
permission is refused the question of awarding costs doesn't arise,
but a lot of these applications will have been publicly funded
and therefore will have cost the Legal Services Commission money.
I doubt, off the top of my head, if a proposal to limit public
funding for all judicial review applications, irrespective of
their nature and merit, would receive much backing. There is such
a wide variety of these applications that one would find it very
difficult to put in place something as sweeping as that.
On the other hand, I do think that, if an economical
system could be put in place where legal aid was available for
meritorious claims but not available for claims which had no merit,
that would be of advantage.
Q158 Ben Gummer:
You have almost answered the question I was going to ask. The
contention of the Lord Chancellor is that the Ministry did not
want to take judicial review out of scope precisely for the reason
that you have mentioned, but you have given one instance where
it is perfectly possible to do so and not jeopardise the rights
of citizens apropos their relationship with the State. By extension,
there must be other areas within judicial review where it is possible
to do that without jeopardising that relationship. Sir
Anthony May: Thinking on my feet, if you have an asylum
decision by the Secretary of State which then is appealed to the
First-tier Tribunal and the appeal fails, and there is then an
application for permission to appeal that decision, it is at least
a question worth asking whether public funding for that application
might or might not be considered. The analogy with the criminal
side of it is that the application for permission ought to carry
on the back of the public funding for the first instance appeal.
Q159 Chair: Can
I turn back to tribunals for a moment? There are two things I
want to say about tribunals. First of all, they have expanded
with the State's decision-making activity and its willingness
to grant some kind of appeal mechanism for decisions which have
a big impact on the lives of individuals or families. Generally
speaking, many of them, when they were created, were meant to
be user-friendly and not to generate the sort of proceedings that
would be normal in a court of law, even though they have some
of the legal bases for the court of law. Do we no longer view
tribunals in that light? Are we simply now treating them like
any other court of law?
Judge Robert Martin:
How times change. The complexity of the law has multiplied. When
Social Security Tribunals were first set up, at that stage I was
an adviser. The law that we used was encapsulated in a very slim
handbook. The reference materials that we issue to our tribunals
now extend to 7,500 pages spread over six volumes. The ability
of tribunals to act in that simple, accessible, informed way is
not assisted when the law itself becomes increasingly complex.
We endeavour to live up to the original reasons to justify tribunals
being informal, but that is against the formality of the court.
For many of the people who appear unrepresented it is still a
very daunting and stressful experience, no matter how friendly
we try to be.
We still preserve the notion that tribunals should
be expert bodies and therefore it is easier for a person who has
not had the benefit of professional representation to set out
their case, to be enabled to present their case, because the tribunal
itself will adopt an enabling role. But there are limitations
to what we can do. One of those limitations is that this is a
criticism of the proposal in the consultation paper which says
that you should look at the ability of a citizen to present his
or her case. What we really need is assistance in the ability
to handle the entirety of the case, because so much groundwork
has to be done before someone gets to the door of the tribunal.
That is where I have a concern. The removal of legal help from
so many areas of activity in the tribunal will set people off
handicapped on their ability to win their case.
Q160 Chair: Will
it bring more people into the tribunal because they have not been
advised that their case has no chance of success in the tribunal?
Judge Robert Martin:
Yes, because a general public awareness of tribunals is very low.
Very little is put into public education of the law and how to
seek redress for grievances. There is this risk that we will see
many people who have been drawn to the tribunal believing it is
the most appropriate forum to solve things, whereas it may be
just a mistaken conception about the tribunal. Legal help is so
important in that triage function of sifting out cases which can
be redressed but not through the tribunal or the court, and assisting
those cases where the tribunal or the court can assist to have
the case prepared in a way that maximises the chance of success.
Q161 Chair: It
is not always lawyers, though, is it? It is often trade union
officials or welfare rights advisers who can point the client
to the aspect of the case which needs to be brought out.
Judge Robert Martin:
Yes. The majority of legal help in the social security field is
carried out by welfare rights advisers and citizens advice bureaux.
In the employment field, obviously trade unions are to the fore.
One of the beneficial changes in the legal scheme over the year
has been the extension of public legal funding to cases where
specialist help is not necessarily that of a solicitor or barrister
but someone who has particular expertise in that field, whether
it is housing, social security, welfare or education.
Q162 Chair: Can
the tribunal and its office and staff do more to say to people,
"What the tribunal will want to establish in your case is
whether or not X"—whatever X may be—"happened
and that is what you will need to concentrate on and satisfy the
tribunal on if you are to win your appeal"?
Judge Robert Martin:
So much of a tribunal hearing at the moment is taken up with general
information and education: what is going to happen next in the
tribunal and what the tribunal needs to concentrate on. For the
appellant, they are there because they feel that they have not
been treated fairly and a decision has been taken that they don't
think is right, but they don't necessarily have the ability to
translate that into what the law might regard as the appropriate
outcome for them. We spend a lot of time in each hearing explaining
exactly what the tribunal can and cannot do. We endeavour to allow
people to have their full say and, in effect, clear their chest
of what they believe the issues are, but then to try and steer
that into what the law allows us to take into account or ignore.
With the removal of legal help, we will have to spend a lot more
time explaining simply what the tribunal is about rather than
getting to the heart of the matter.
Q163 Chair: It
has been put to us by one witness, and probably the same view
is shared by some other organisations, that there is an inequality
of arms in the tribunal situation if one side, whether it be a
Government Department or an employer, is legally represented and
the other is not. Do you regard it as an inequality of arms—an
article 8 issue, if you like—or is that something that the
tribunal can satisfactorily compensate for?
Judge Robert Martin:
There is inequality of arms in different ways. The amount of preparation
that can be put into a case varies according to the resources.
If you are coming up against a Government Department, whether
it is the Department for Work and Pensions, or a local authority
in special educational needs, or I could extend that to say in
an Employment Tribunal where the employer in effect is able to
set off the costs of representation against tax, then there is
a disadvantage in that way. There is an inequality of arms to
that extent. The tribunal will endeavour to rectify that by assisting
a disadvantaged party to present their case effectively, but we
maintain a balance between trying to even up the two parties to
the appeal without at the same time being overly seen as leaning
over backwards in a way that might be perceived as bias in favour
of one party rather than another.
Q164 Yasmin Qureshi:
When parties come before a tribunal, I understand it obviously
tries to offer as much assistance as it can, but of course, one
of the problems is, when somebody is preparing their case for
the tribunal, they need to have advice as to how to go about gathering
their evidence to prove their case. If there is no legal aid or
no legal mechanism, what system exists to help them?
Judge Robert Martin:
In many cases where a social security appeal turns on a person's
state of health, we see an appeal letter or correspondence from
the appellant which says, "My GP knows all about my health
problems. You are quite free to ring him up and he will help you."
But the tribunal really isn't in a position to pick up the phone,
interrupt a GP's surgery and say, "We have an appeal on at
the moment." Legal help comes in where the advice worker
can say, "The tribunal won't be doing that, but I can do
that for you," and possibly even pay for a short medical
report. The person then arrives at the tribunal equipped with
that evidence.
Q165 Ben Gummer:
The Government seems to have advanced its case for reform with
three statements which were repeated. The first is that there
is a deficit, and we all agree with that. The second is that reform
is possible cost-wise apropos the increase in the use of mediation.
That has caused some surprise, as we agreed earlier. The third
is that we have a very expensive system in this country. Yet their
own evidence, presented to them by the university of York two
years ago, suggests that in fact that is not a conclusion one
could come to with great certainty, the costs of the courts in
this country are considerably lower than in other jurisdictions,
and it is an unfair comparison in any case because of the relative
difference in deprivation in this country compared with some other
common law jurisdictions. Could you comment on that last statement?
Sir Anthony May:
I am not personally very well informed about comparative costs
in other jurisdictions. What strikes a chord with me when you
ask the question is the underlying implication that, if the cost
of publicly funded legal representation is reduced, there will
be an increase in the cost of publicly funded courts. I don't
see that happening because, in circumstances where, as with so
many other public services, the cost of the court administration
is running in the opposite direction and where there is no prospect,
as we see it at the minute, of the number of judges being increased
in any jurisdiction but certainly not in those jurisdictions with
which I am concerned, it is perfectly obvious that the effect,
it seems to me, is not likely to be an increase in the cost of
the justice system but an increase in the pressure that is put
on the judicial side of it and, importantly, on the administrative
side of it.
There has to be a danger that a rather indeterminate
spin-off consequence would be that the actual quality of the justice
which is delivered will be in danger of reducing. It may be in
danger of reducing because the administrative preparation that
is provided to the judges is not so great. It may be in danger
of reducing, God help us, because the judges are under so much
greater pressure that they have to do cases in a shorter time
than they ought to be given, and that kind of thing. It is terribly
important that a reduction in the expenditure on the justice system,
however it is effected, can only take place in the end either
by reducing the number of cases, which in certain instances is
a possibility but in others is a complete impossibility, or in
extending the time that these cases take. The only thing that
one can do with the same number of cases but a smaller resource
to deal with them is to extend the waiting times.
Sir Nicholas Wall:
Can I just add to that? I do think there is not an adequate appreciation
of the pressure that the family justice system is under at the
moment already, with a succession of cuts and very low fees for
lawyers. The pressure on the Circuit Bench and the District Bench,
particularly, who do the majority of this work in the County Court,
is enormous. I have great anxiety not just for the quality of
justice but for the health and well-being of the judges if they
are put under additional pressure.
Judge Robert Martin:
As you say, one of the goals in the consultation paper is to refocus
the funding on the most disadvantaged and the most vulnerable.
I think the strategy adopted is completely ineffectual in doing
that by focusing on categories of law rather than real-life individuals.
If I can illustrate this, community care will be left within scope
because it is to be directed towards those who are elderly, frail
and disabled, but what would be taken out of scope is attendance
allowance, which is a benefit designed for people who are elderly,
frail and disabled. One of the differences may be that the payment
of attendance allowance would allow an elderly, disabled person
to remain in their own home. If you remove that, it has a knock-on
effect because then they may be displaced into residential care,
which is much more expensive. It seems to be a failure to refocus
upon those who are the most disadvantaged and a failure to bring
into account the knock-on economic effects of not supporting people,
quite cheaply I believe, through effective legal aid.
Q166 Chair: Bearing
that in mind, can I ask one slightly exasperated question? Why
is it that a decision that someone needs attendance allowance
can't be well made in the first place and then subject to a process
which does not necessitate a lawyer advising the person on what
method he would have to employ to challenge the decision or a
lawyer appearing at a tribunal in order to advocate a different
outcome? Surely that very personal and very vital decision can
be made in some better way, can it not?
Judge Robert Martin:
When we reach that golden age, we can not only say goodbye to
legal aid but to lawyers in courts and tribunals as well.
Q167 Chair: Thank
you very much. We are very grateful to all three of you for your
help this afternoon.
Sir Anthony May:
Simply as a matter of information, this week, a Sub-Committee
of the Judges' Council on behalf of the Judges' Council is about
to submit a written response to the consultation paper. I think
the deadline is next Monday, and that deadline will be achieved.
I have seen this document in draft. It covers a very large proportion
of the entire consultation paper. I am sure that it will be published
and be useful.
Q168 Chair: We
certainly hope to take note of that and allow it to affect our
thinking at the final stages of what is going to be a very short
process, but that should be in time for us to do so.
Sir Anthony May:
It will come to the consultation this week.
Chair: Excellent. Thank
you very much indeed.
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