Examination of Witnesses (Question Numbers
304-349)
Sarah Albon and Carolyn Downs
14 February 2011
Chair: We are very glad
to have Carolyn Downs and Sarah Albon, representing the Legal
Services Commission and the Ministry of Justice, to help us with
our inquiry into legal aid. In the earlier session this afternoon
we were looking at the comparative figures and trying to draw
some experience and lessons from that on the basis of the study
which the Ministry of Justice commissioned. I will ask Elizabeth
Truss to open the questioning.
Q304 Elizabeth Truss:
Could I start off by asking what the cost drivers of legal aid
are, in the Ministry of Justice's assessment, and how you are
planning to address that through the proposed reforms?
Sarah Albon: The
principal cost drivers of legal aid are simply the numbers of
cases that come through. If we look at criminal legal aid, it
is about the number of people who were interviewed by the police
and then the numbers who go on to be charged and, crucially, which
venue they appear in, whether it is the magistrates' courts or
the Crown court. Obviously in the areas around debt, social welfare,
housing and that kind of thing we have seen an impact from the
recession, with increasing numbers of people eligible for legal
aid. In public family law, dealing with children at risk of serious
harm, we have seen a significant increase in the volumes, particularly
following the Baby Peter case.
Q305 Elizabeth Truss:
Can I ask about the cost per case, though, because on the international
comparisons, that does appear to be higher than other countries
and it appears to be higher than other common law countries? What
would you say is the driver of that cost per case?
Sarah Albon: We
only have limited evidence on what drives the individual cost
per case. Clearly, it breaks down to a mixture of lawyers' fees
and experts' fees. An individual case will cost us more typically
in crime if it takes longer at trial. We have also seen, in crime,
a significant increase in the number of pages of evidence which
are served and that drives through into higher fees.
Q306 Elizabeth Truss:
What is driving that increase in the pages of evidence? Is it
the complexity of the case or the complexity of the law?
Sarah Albon: I
don't think we know.
Q307 Elizabeth Truss:
Could I ask the same question of the Legal Services Commission?
Carolyn Downs:
I completely agree with Sarah in terms of the various costs. I
do think expert fees are a driver, particularly in relation to
family law and child protection cases. That is an issue that drives
costs. Something else which can drive costs as well is prosecution.
I don't think you should just think about defence but also prosecution
in looking at how the cost of cases comes about. I do agree with
Sarah that I don't think there is any definite evidence.
Q308 Elizabeth Truss:
What work has the Ministry of Justice looked at in terms of reforming
the whole system to make the process through the courts more efficient?
Sarah Albon: We
have looked at a number of things. Currently, under Lord Justice
Goldring there is a piece of work going on looking at the Crown
court efficiency. Prior to that, led by the predecessor to the
new presiding judge, a piece of work was done to significantly
increase the efficiency of work going through magistrates' courts.
The CPS, Home Office and others are under the same sort of spending
pressures obviously that the Ministry is. They are all internally
looking at what savings and efficiencies they can drive. The Family
Justice Review is looking at whole system reform and will publish
an interim report at the end of March, again looking to drive
significant efficiencies through the system. We are also planning
to publish a paper on civil justice in the spring that should
look at driving further efficiencies in the civil justice arena.
There are a number of proposals on guilty pleas and
sentencing we have published that we hope, again, will drive more
efficient behaviour. Finally, in the legal aid proposals themselves,
we hope some of the proposals on reconfiguring some of the criminal
fees will reduce late guilty pleas and, again, have an impact
on a more efficient disposal of business.
Q309 Elizabeth Truss:
Perhaps I could put the next question to Ms Downs of the Legal
Services Commission. How have you looked at refining the process
within the Legal Services Commission and making it more effective?
Carolyn Downs:
First of all, the Ministry of Justice has asked in the consultation
document that people respond with the areas where they themselves
as providers in particular would like to see efficiencies. We
look forward to doing that. We are working with both the Bar Council
and the Law Society at the moment to try to simplify the contracts
and, indeed, particularly the specifications that sit with the
contracts. That is work that we are undertaking at present with
both. Finally, on civil representation, which we would see as
being a cost driver for us—it is the most heavily work-intensive
part of our business—we are aiming to bring in a new automated
and electronic case management system where we will be able to
interact with providers electronically so you stop the passing
around of documentation. We would hope to introduce that by October
of next year. That is work in place as well. So it is those two
particular issues.
Q310 Elizabeth Truss:
A number of witnesses have suggested that one of the drivers of
costs has been other Government agencies effectively externalising
their costs. Has consideration been given to a "polluter
pays" principle, where that cost would effectively be internalised
either within other sectors or within other public service areas?
Sarah Albon: We
do look at those sorts of issues. In 2009-10, some £170 million
was recovered on behalf of the legal aid fund from costs and damages
awarded against non-legally aided parties. Of course in criminal
cases, on conviction under the old system, people convicted of
crime could be asked to pay towards their costs. Under the new
system, with means testing, people who can afford to pay towards
their defence are asked to do so. In terms of other Government
Departments' policies on legal aid, we do conduct a justice impact
test as new policies come up. Over the past few years about £20
million has been transferred from other Government Departments
to the Ministry of Justice.
The other thing we would need to look at is that,
at the moment, the legal aid fund has fairly complete cost protection
against itself being on the losing side. If we had a "polluter
pays" scheme, then it would be reasonable to expect that,
when the legally aided party is on the losing side, costs might
be recoverable against the legal aid fund. If we move to that,
it would probably leave us even worse off in net terms than we
currently are.
Q311 Chair: Can
I just check something there? When you said £20 million has
come from other Departments, was that part of the process of the
Courts Service acquiring responsibilities for the tribunals system,
or was it actually you somehow knocking on the door of the Departments
and saying, "Look, you are costing us a lot of money and
I think you should contribute"?
Sarah Albon: Yes,
it was that, Mr Chairman. It was part of the inter-departmental
clearing of new policies where we would have identified that,
if a particular Department introduces a particular policy, there
would be knock-on costs to the Legal Services Commission, and
money was therefore transferred from those other Departments to
the Legal Services Commission through the Ministry.
Q312 Chair: Can
you just clarify what this process is? You mean you say to the
Department, "This policy will generate a larger number of
appeals and legal procedures than previously"?
Sarah Albon: Yes.
Carolyn Downs:
Yes.
Q313 Chair: But
the one thing you can't get at with that, presumably, is bad decision
making?
Sarah Albon: No,
that is right. It doesn't get at bad decision making. It is new
policy that will create new criminal cases or a new class of criminal
case. For bad decision making, what we are trying to do is to
work very closely with other Government Departments—for
example, the DWP—sharing knowledge from tribunal judges
about typical mistakes which are made by first instance decision
makers and trying to embed a culture of making decisions right
first time.
Q314 Ben Gummer:
It is not really holding their feet in the fire, is it? Much as
it is nice for the DWP to have that advice, it is not really imposing
a penalty for bad decision making?
Sarah Albon: I
accept it is not a penalty, no, but there is an issue of what
would cost the Government more. There is a danger in setting up
a bureaucratic chasing round of who has made a bad decision, because
you haven't necessarily made a bad decision every time you have
made a wrong decision.
Q315 Chair: No,
but if you get a persistent 90% appeals success rate for example—and
we have an example of exactly that in special educational needs—then
there must be some bad decisions or something wrong somewhere
in the Department that is responsible, mustn't there?
Sarah Albon: It
seems most likely that that must be the case, yes.
Chair: Perhaps there ought
to be some mechanism for pursuing that.
Q316 Elizabeth Truss:
I would like to follow up on two things. A number of other witnesses
have also talked about issues within the Courts Service and inefficiencies
such as documents not turning up and so on, prolonging cases.
What is being done by the Ministry of Justice to address that?
Likewise, for the Legal Services Commission, there have been a
lot of complaints about inefficiency and over-bureaucracy. You
have already talked about your electronic scheme, but there is
always a risk with IT systems that sometimes they can create inefficiencies
that weren't there in the first place.
Chair: Any offers?
Sarah Albon: I
am not aware of problems being reported to us in the past about
documents being lost directly by the Courts Service, although
I am aware of cases where, in particular in the magistrates' court,
prosecutions cannot go ahead because, say, the CPS have not served
documents in a timely way. If it is direct losses by HMCS, I am
not personally aware of that, although obviously I would be very
happy to look into anything that you have heard and write to the
Committee.
Carolyn Downs:
On inefficiency and over-bureaucracy, there are a few issues there.
People do write to me about the overhead costs of the Legal Services
Commission as well, but the overhead costs of the Legal Services
Commission are about 4% of the take on the fund. If you look at
that as the overheads for running an organisation, I don't think
4% is overly excessive.
On the other issues around being overly bureaucratic,
I have to say I would agree in certain instances in relation to
a lot of the checking and re-checking that we undertake. It is
worth bearing in mind that we have had our accounts qualified
now for two years in a row. A lot of the checking that we are
required to do is specifically around the qualification of accounts.
I will give you an example because I was with my staff in Chester
last Friday, where we have been looking at the cost both to us
and to providers of the checking that we now have to do around
eligibility and chasing people's bank statements. That is specifically
a requirement about the overpayments that have been made in the
past. We will be looking at that very clearly to see whether the
level of money that we are recovering justifies the level of cost
both to ourselves and indeed to providers. Then we will have to
go back and have a conversation with the National Audit Office
if we feel that that cost to both ourselves and providers is greater
than the recovery of moneys to us. It is an issue with which I
would have some sympathy.
Q317 Mr Buckland:
One thing that has always struck me, having done legal aid work
over the years, is that VAT is charged on the fees. I collect
it and then I pay it to the Treasury. Why do they do this? It
is one arm of Government collecting money to be paid to another.
What is the point? I don't know whether you can help us with that.
Carolyn Downs:
I think that is a question for the Treasury.
Chair: We will ask them
that the next time we see them.
Carolyn Downs:
I have to pay VAT to the MoJ.
Q318 Mr Buckland:
There is one final point, and again I just need to deal with it.
I am all in favour of databases and the use of computers, but
are we not entitled to be a little sceptical when the LSC, now
having taken on the role of payment of fees for counsel, are already
showing quite significant delays with the new system? There is
a great concern out there as to the delays that are being caused
as a result of the transfer from the Courts Service to the LSC.
Carolyn Downs:
I would accept that, absolutely. The truth of the matter is that
that delay relates to inadequate IT infrastructure in both organisations,
and the map across. With the Advocates Graduated Fees Scheme transfer,
we have been very clear that we are not prepared to have that
transferred from the Courts Service to ourselves until it is at
a point at which we can effectively administer that process, precisely
because of the issues that you raise. Yet again, we would have
been in a position—if it had transferred last October—of
bringing it across and not being able to administer it at all.
So it is better to leave it where it is until we have an adequate
and appropriate solution.
Q319 Ben Gummer:
On the back of that, do you have an estimate of the increase in
costs that might have been incurred by the extraordinary delays
in payments to counsel for which the LSC is now famous? It will
have an upward cost on fees and costs.
Carolyn Downs:
I don't have that on me. What I would say, however, is that, if
you look at our payment targets and our payment rates against
our targets, we are over 90% within our target levels. I can go
away, have a look at that and get back to you on it, no question.
Ben Gummer: It was an
ancillary point.
Q320 Mr Buckland:
The essence of the inquiry is the proposed reduction in scope
under the Green Paper. We have already touched on it somewhat,
with regard to SEN. I don't know whether any estimates have been
made of the potential costs, either to other parts of the MoJ
or to other Departments, of removing immigration cases and other
areas from scope. Do you have any figures that we could see or
use?
Sarah Albon: The
impact assessment attempted to look at the possible impact on
HMCS, recognising on the one hand that there would probably be
some increase in litigants in person, which would be likely to
make some cases take longer, but on the other hand the best analytical
assumptions that we could bring to it also suggested that there
would probably be some reduction in the overall number of cases.
We accept that this kind of prediction of behavioural change is
extremely difficult. I don't think we would try to suggest that
there is any arithmetical certainty behind what are simply best
estimates.
We have not made any analysis of the potential impact
of the legal aid changes on other Government Departments. There
was some analysis of the impact of the Jackson proposals on the
NHS litigation authority, where we think that the combination
of the two proposals together would probably save the NHS litigation
authority in the region of £50 million a year. Although they
will continue to defend cases, they won't be paying the same level
of uplift and after-the-event insurances.
Q321 Mr Buckland:
So the figure of £350 million that is suggested as the saving
is really a speculative figure?
Sarah Albon: I
don't think it is a speculative figure, but what I am saying is
that it is necessarily a best estimate.
Q322 Mr Buckland:
But it is an estimate that is not based upon any analysis of impact
upon other Departments?
Sarah Albon: No.
It is £350 million net saving to the legal aid fund rather
than net of wider Government impacts.
Q323 Mr Buckland:
The truth is that we really don't know what impact it will have
upon overall Government spending on legal issues. Shall I use
that phrase rather than legal services? We just don't know, do
we?
Sarah Albon: I
think that is true; we don't.
Q324 Mr Buckland:
Reference has been made to education law and SEN. The Chairman
has already asked a question about that. Has there been any assessment
of the impact the removal of legal aid from education? What do
you think the impact is going to be if and when legal aid is removed
from that area entirely?
Sarah Albon: We
estimated that approximately 2,000 cases a year would no longer
be helped as a result of this change if it was implemented, at
an estimated saving of £1 million. It is important to qualify
that it is not a complete removal, because the assumption is still
that, where the issue is one of discrimination, as with other
areas of discrimination, those cases will remain in scope to the
extent that they currently are.
Q325 Chair: Would
it be the case that within that area you have some cases which
raise quite important legal questions and set precedents for others,
but you also have decisions which are being appealed against,
in which legal representation might be considered unnecessary
or at least a bit of a luxury, when what the process needs to
do is to test the facts about that particular case?
Sarah Albon: I
think that is exactly right. With regard to the very difficult
cases that you describe, where you are talking about an extremely
difficult point of law where maybe people's article 6 rights are
engaged and the right to a fair trial as you get further through
the appeal process, we do recognise that various cases, although
out of scope, will still need to be funded through the exceptional
funding mechanism, looking at individual cases which were otherwise
out of scope of legal aid under the new proposals.
Q326 Mr Buckland:
How much work has been done with the Department for Education,
who you know are about to undergo a Green Paper of their own on
SEN, to understand potential alternative means of dispute resolution
within the SEN framework?
Sarah Albon: The
Department for Education agreed the proposals before we went to
consultation.
Q327 Mr Buckland:
Is it proposed to link up with their Green Paper work? Obviously
it will be slightly behind the work of the MoJ on its legal aid
proposals. Will there be a formalised or concrete liaison with
the DfE during its revision process to understand the implications
of their proposals and to work up some impact assessments or costings
for the MoJ?
Sarah Albon: Certainly,
and we work closely with the DfE. I meet my opposite number director,
I would think, on average, weekly and the teams work very closely
together. They work jointly on some areas such as the Family Justice
Review. We will absolutely continue working very closely together.
Q328 Mr Buckland:
That brings me on to the question of family justice. A great deal
is made of mediation. Has there been any estimate made of the
cost benefits of mediation in family law cases? Bearing in mind
the fact that the majority of cases settle out of court anyway,
I am not saying there could be an increase but that is a possibility.
Have you done any cost-benefit analysis of that?
Sarah Albon: Yes.
The NAO did a value-for-money report which was published back
in 2007. The LSC figures continue to support the broad differences,
which suggest that the average cost of a legally aided, non-mediated
case was around £1,682 whereas where a case was mediated
the cost was around £752.
Q329 Mr Buckland:
Forgive me, legally aided and non-mediated: is that a case that
went to a full fight?
Sarah Albon: No;
the majority of those won't have done. As you say, they mostly
don't. The NAO considered that if, say, a further 14% of cases
were diverted away—which is now an increasingly small number—they
thought that the resulting savings would be some £10 million
a year.
Q330 Mr Buckland:
Moving on to the criterion of housing scope and imminent homelessness,
the proposal is to reduce the scope of legal aid funding on these
cases. What analysis has been made of the impact of reduction
of scope in that area?
Sarah Albon: We
have made an analysis. If you will bear with me, I will look the
figures up for you. I am sorry. Would it be easier if I wrote
to you? I could get something to you before you meet again on
Wednesday.
Q331 Mr Buckland:
I am sure that will be all right. There is a supplementary I want
to ask about that area. A lot of us on the Committee and elsewhere
will have had input from Citizens Advice Bureaux, and law centres
in particular were very, very concerned about the reduction in
scope here, but say that the work will not go away. Has there
been any discussion with other Government Departments—perhaps
the Cabinet Office, for example—as to ways of still meeting
what is sometimes a quasi-legal demand? Some of these issues can
be resolved by negotiation with the local authority, for example.
Has there been any discussion with the Cabinet Office as to how
we can retain some of these local services in order to stop them
from escalating into something far more serious and therefore
costing the Legal Services Commission even more?
Sarah Albon: There
have been discussions in Government, and it may be that the Minister
is better placed to answer some of that when he appears on Wednesday.
The key issue is that, although with central government funds
and these different forms of providing help we can take a holistic
look across and make sure that decisions are made jointly about
what streams of funding continue, we are left with little more
than the ability to exhort and encourage where the main funders
are local authorities. Ministers have been very clear that they
hope that local authorities will not prioritise cutting all of
these kinds of areas of non-legal but sometimes very specialist
help, as you say. It is not something which we can necessarily
tell local authorities to do.
Q332 Mr Llwyd:
The 2009 study by the University of York found, among other things,
that, compared to other countries, to some extent high legal aid
costs were offset by lower costs elsewhere in the system. By spending
less on legal aid are we going to reverse the situation and have,
effectively, more expensive courts?
Sarah Albon: In
a sense, that comes back to the point I was making about litigants
in person. We do accept that, where people convert from being
represented to becoming litigants in person, there may be some
increased cost as cases may take longer. But we also consider
that, partly through the provision of alternative methods of dispute
resolution and mediation in family, we hope to reduce overall
the number of cases that come to court, so that even if the unit
cost increases the overall cost won't.
Q333 Mr Llwyd:
But mediation is already available, isn't it?
Sarah Albon: It
is already available but not perhaps widely known about and not
pushed or sold as much as it could be. We think that the take-up
could be much better than it is currently.
Q334 Mr Llwyd:
But there will be those—and there will be many in family
law—that will simply not be fit for mediation, because one
or two of the parties will flatly refuse to enter a room with
the other party.
Sarah Albon: That
is always the case in a hard core of cases. We accept that. The
issue is whether or not sufficient cases can be diverted away
from otherwise coming to court in order that the increased cost
of some cases is offset.
Q335 Mr Llwyd:
Litigants in person do take up a huge amount of court time.
Sarah Albon: They
do, and we accept that, although there is some evidence that,
where there are two represented parties and two non-represented
parties, it is the two non-represented parties whose overall costs
are less because they spend, frankly, less time back in court
arguing again.
Q336 Mr Llwyd:
Really? That is interesting. Could I ask you one question about
family again? I put it to Professor Bowles earlier on. Is there
any evidence of a substantial increase in the instructing of guardians
ad litem over the past five or six years?
Sarah Albon: I
don't know the answer to that question.
Q337 Mr Llwyd:
I don't mean to trick you. If you are able to send a note to the
Committee it might be helpful.
Sarah Albon: Sure,
yes.
Q338 Mr Llwyd:
Thank you. The Ministry of Justice specified the comparative countries
which were to be included in the international study to which
I have referred. By what criteria were these countries determined?
Sarah Albon: When
we say we specified them, we discussed it with the university.
I think it was a list that was reached jointly. Effectively, we
were looking to get countries that had a mix, where possible,
of common law background, and not just looking to the civil law
European countries. We wanted as much of a mix of cases as we
could get. We were not trying to compile a complete list, obviously,
of all the jurisdictions there are. It was inevitably a limited
study, but we were just trying to get as much of a mix as we possibly
could.
Q339 Mr Llwyd:
Has the Ministry of Justice reviewed practice in any other jurisdictions
to inform its proposals on legal aid?
Sarah Albon: Yes,
we have. We have spoken at some length to quite a few other countries,
both thinking about legal aid but also trying to learn lessons
about how court procedures can work in other jurisdictions, particularly
in the realm of family law in the context of the Family Justice
Review.
Q340 Mr Llwyd:
Could you specify further on that?
Sarah Albon: We
have been quite interested to look at other jurisdictions where
mediation is used more, thinking of some of the American states
and also Australia. We have looked at the different way that the
family justice system works in Scotland, where they have a quite
different set-up from the set-up that we have down here. We have
talked obviously to our counterparts in Scotland and Northern
Ireland as part of the overall UK jurisdiction about how they
manage to do things differently and what is different about their
systems. We have spoken to people like the Canadian Ministry of
Justice and also various states in the US, as I say, about what
they fund and what makes them fund.
Even if eventually Ministers conclude that they are
going with the full range of scope cuts that have been proposed
and consulted on, it is true that there are still quite a lot
of other jurisdictions that simply do not fund the range of advice
that we choose to do. For many other jurisdictions, they are limiting
themselves much more closely to criminal representation and some
of the child protection work, although often the child protection
systems are very different from our own. It has been difficult
to find some other area, look at it and think they are providing
a much better and cheaper service than us. Mostly, when they are
spending a lot less, it is because they are buying a lot less.
Q341 Ben Gummer:
On that note about research, I have to say that this is a feature
of government which, as a newcomer, I am finding increasingly
interesting. If a private enterprise was spending £2.1 billion
investment per annum, the depth and richness of data on which
they would expect to base their decisions would be very much greater.
Is it a cultural thing that the Ministry of Justice has not gone
beyond the excellent research already provided by Professor Bowles,
or is it just a budgetary thing? Why can there not be a better
evidence base for making these decisions rather than what seems
to be, if you will forgive me for saying so, a largely anecdotal
exploration of comparative costs?
Sarah Albon: Are
you talking about knowledge about our own system or knowledge
about other jurisdictions?
Ben Gummer: Both.
Sarah Albon: It
may be a criticism of governments in general that the amount of
data collected in straightforwardly comparatively ways is very
poor. We are often left in a position where we need to go back
to original court files or at the Commission to their original
files to do quite in-depth research into the kind of information
that we might perhaps have wished predecessors routinely collected
but frankly didn't. I guess there is the balance for Government
and for the Legal Services Commission. There is an awful lot more
information that we would like to routinely collect, but there
is a cost to collecting it both in terms of data and IT systems,
and, more fundamentally, in the human cost to solicitors, barristers
and then the Commission in having to collate and provide information.
For example, the Commission has moved over the years
to a system of much more fixed and graduated fees. That means
that however much work, up to a certain point, a solicitor or
barrister does on a particular case they are only going to get
a particular fixed fee. It might be very nice for us to know,
behind that, exactly how much work they have done, when and where
they did it and what type of work it was. But if we tried to collect
all of that and require providers to tell us, I think they would
very reasonably be saying to us, "Look, none of that is going
to make any difference to the fee that you pay me and it would
be expensive for us to collect and report it to you. Unless, frankly,
you are going to pay us more, we can't and won't be able to provide
that to you." In those terms, if you then said, "Nevertheless,
you must tell us", you would end up with very poor quality
data because, not unreasonably, firms and individuals would probably
just write down a number that they thought the Commission wouldn't
query, and on we go.
Chair: That sounds like
the voice of bitter experience.
Sarah Albon: Yes.
Q342 Ben Gummer:
I take your point on that, but, on the further issue of the impact
studies that you have done, you are probably well aware that the
President of the Family Division expressed his surprise at the
MoJ's assumptions. It seems that no one believes, frankly, what
you are saying is going to happen as a result of this. What is
your answer to that?
Sarah Albon: I
think we had perhaps one supporter in Sir Anthony May.
Ben Gummer: Yes, I am
glad you grasped that.
Mr Buckland: That was
on judicial review.
Sarah Albon: When
we have spoken to practitioners in other contexts, and when you
look at the number of people who are not legally aided but who
are not either perhaps in a position to fund their own litigation
without worrying about the price, there are not very many people
of modest means just above legal aid who spend a lot of time as
litigants in person fighting through the courts. We do accept
that we need to look at the procedures that people need to go
through around relationship breakdown, making applications for
contact and those kinds of things to facilitate people using our
courts more straightforwardly without expert professional help
in every case. We do think that, if we continue to provide better
information, mediation services and to ensure that the procedures
are as simple and straightforward to access as possible, then
sufficient numbers of people will be enabled to sort out their
own relationship breakdown issues without needing to bring everything
to court, although we do of course accept that there is a hard
core of cases which will, and should, appropriately come to court
in order to be decided by a judge.
Q343 Ben Gummer:
Finally, there has been a lot of comment and evidence from the
FLBA, the Bar Council and the Law Society, and Stephen Cobb was
on the radio this morning. They have all provided their comments
on your proposals, most of them largely negative. We in this Committee
have been trying to find positive suggestions from them. Have
you received many positive suggestions and how useful have they
been?
Sarah Albon: I
saw today the FLBA's response to our consultation. It is 300 pages
long. I am hoping that there are indeed some positive suggestions
in there, but I honestly could not tell you that I have read it
yet.
Q344 Chair: To
what extent have you already looked at and dismissed alternatives?
Among those, was the idea of a stricter merits test for judicial
review an issue that was looked at, or is that something to come
on to at another stage?
Sarah Albon: No.
We have continued to look at that. We are very mindful that it
is important to maintain the ability of the individual to challenge
the State. We see judicial review as a very important mechanism
by which those sorts of serious cases can be brought. Effectively,
the staff at the Legal Services Commission rely on indications
of prospects of success from independent counsel, usually employed
by potential litigants. It is quite difficult for staff at the
Legal Services Commission to second-guess that kind of thing,
but we are certainly open to suggestions about how things like
the merits test could be tightened up. It is fair to say that
we have not dismissed any alternative at the moment of funding
suggestions that may be put to us.
Q345 Chair: In
the case of judicial review, which is fairly topical because we
had one Minister answering today on the outcome of a judicial
review, you have a problem that people take the decision to go
to judicial review because they are very upset about a decision
and wish to change a decision. But they tend to win procedural
victories rather than substantive victories, which means that
a consultation then takes place, which should have happened in
the first place.
Sarah Albon: Yes.
Q346 Chair: Is
there any way we can address that problem, either by penalising
Departments which keep getting themselves into this situation
or by simplifying the process by which merely procedural failings
are identified and dealt with by the court?
Sarah Albon: I
think that is a very interesting suggestion. It is not one I have
had put to me before. You make a very valid point that the end
result of many judicial reviews which are successful is that the
public authority can go away and still do what it was always going
to do, but it takes it longer to get there. The other thing, though,
to bear in mind on judicial review is that the biggest area of
burden on the courts around judicial review is in the area of
immigration and asylum. There, large numbers of cases do fail
at permission stage, but most of the ones which are being legally
aided go through. It tends to be people who are funding it through
other mechanisms that, overwhelmingly, are dropping out at permission
stage. We see a really significant difference between cases which
have been through the Legal Services Commission's merits test
and cases which are funded through other mechanisms. Obviously
we don't know how, whether it be pro bono, through friends and
families or through charities, but the Commission's merits test
there is making a significant difference to the quality of cases
that are taken through.
Q347 Mr Buckland:
Finally, the prisoners' voting scenario had its genesis as a legally
aided case. I have heard what you say about the merits test. Is
there not also merit in looking at another conjunctive test, which
would be the public interest? It is a little like the test that
is applied by the Crown Prosecution Service, for example, in its
decision to prosecute. Could that not be looked at as another
criterion by which judicial review applications are judged fit
for legal aid or otherwise?
Sarah Albon: Certainly,
on the exceptional funding cases that the Commission looks at
now, it does use the significant wider public interest test as
one of the main planks under which it decides whether or not a
case should be funded. We would be wary of usurping the function
of the court through employees of, in the end, an NDPB of a Government
Department to stop judicial reviews that might seem inconvenient.
Q348 Mr Buckland:
You are not stopping them, though, are you? You are not funding
them.
Sarah Albon: No;
we are just stopping our funding.
Q349 Mr Buckland:
There is a difference, isn't there?
Sarah Albon: Yes.
Chair: Thank you very
much indeed. We will see you again, Ms Albon, on Wednesday. Ms
Downes, we will see you on other occasions. Thank you both very
much indeed.
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