Session 2010-11
Publications on the internet

To be published as HC 681- i

House of COMMONS



Justice Committee


wednesday 15 December 2010


Evidence heard in Public Questions 1 - 61



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Oral Evidence

Taken before the Justice Committee

on Wednesday 15 December 2010

Members present:

Sir Alan Beith (in the Chair)

Mr Robert Buckland

Chris Evans

Ben Gummer

Mr Elfyn Llwyd

Claire Perry

Elizabeth Truss

Karl Turner


Examination of Witness

Witness: Rt Hon Kenneth Clarke MP QC, Lord Chancellor and Secretary of State, Ministry of Justice, gave evidence.

Chair: Welcome to the Lord Chancellor. We have to go through the declaration of interests before we start. I will start on this side of the table.

Mr Buckland: My declaration of interest is that for 20 years I have been a legal aid barrister. I am still in receipt of payments for criminal legal aid for cases completed before the election, and I am a recorder of the Crown Court.

Mr Llwyd: I practised as a solicitor and barrister. I have done legal aid work, both civil and criminal, and since April I have been non-practising.

Karl Turner: I practised as a solicitor and before being elected to this House I was a barrister in my local chambers in Hull.

Q1 Chair: I don’t think the Lord Chancellor has practised for some time, have you?

Mr Clarke: It is a little over 30 years since I put on robes in anger and appeared in a court, but I enjoyed it when I did. I was able to combine it with being a Member of Parliament in those days. It is infinitely more difficult now.

Chair: We have quite a lot of things to get through this morning-two main subjects but also a little bit on the Magistrates’ Court-which means we have to drive along quite energetically. In that spirit I am going to ask Claire Perry to open the questioning.

Q2 Claire Perry: Good morning, Lord Chancellor. When you met us last time you kindly discussed some of the underlying cost drivers of legal aid, which was clearly of great concern. We in Britain seem to be spending far more on legal aid than other countries do for not measurably greater results. Now that we have some more clarity on the proposals, by the Department’s own estimates we see a potential reduction in cases coming before the civil courts of over half a million a year. Clearly, there are great concerns that that means we will be denying access to justice to many people. Could you comment a little on the thinking and application of the policy?

Mr Clarke: Access to justice is not directly affected by anything we are doing because access to justice by every citizen is fundamental in this country, but the amount of access financed by the taxpayer will be affected. What we have done is try to ensure that no one of limited means is remotely barred from access when their life, liberty, home or something of fundamental importance to them is affected. We think the range of legal aid has got too high; we think it has encouraged people to take a more litigious approach to problems, some of which would perhaps be better solved in other ways. We are looking at simpler and less costly ways of resolving disputes for everybody, for example, by mediation where possible rather than adversarial litigation, but it is necessary to address the costs. The costs of legal aid rose by over 20% in real terms from 1993-94 to 2009-10. The last Government had stopped it rising. I remember Ministers complaining that it has now become the fastest rising single item in Government expenditure. We do have far and away the most generous system in the world. Even if the changes that we have proposed and on which we are consulting have the effect we intend we will still have the most generous system in the world, but in some areas we have to look at better ways of resolving disputes. Certainly, the taxpayer should not pay for unnecessary or pointless litigation.

Q3 Claire Perry: Could you give us examples of some of those unnecessary or frivolous forms of legal dispute? Clearly, there is a lot of talk about ambulance chasing. The last thing we want to do is drive people into the "no win no fee" model, if you like, which in the past has been responsible for a lot of anguish, certainly in the Committee. What are the examples where legal aid is being granted vexatiously?

Mr Clarke: In all areas of law sometimes you do have frivolous cases, but we are not saying that all the cases on which we are cutting back are frivolous. That is at its extreme. You provoke somebody to make a claim which they would not conceivably make. There are such things as ambulance-chasing lawyers who encourage people to make claims which probably they would not make until they are told that it would be paid for by the taxpayer. That is the fringe of it; that is not our main target. The vast growth is particularly in the family courts. I think that is where our changes are most marked. There are lots of very difficult, emotional problems often following the break-up of a marriage or partnership, particularly surrounding the children. We think that in public law child care proceedings it is terribly important to keep legal aid, but in private disputes between parents over access, contact and so on we are not at all sure that thousands of pounds’ worth of lawyers on one side or the other, or both, necessarily reduces the conflict, resolves matters, and makes it easier to decide how the best interests of the children are maintained and that both parents’ rights are respected. We are looking at mediation there where we think it doesn’t necessarily have a legal solution. There are other areas, for example, education. You need the advice of educational experts; you do not need adversarial lawyers necessarily to resolve it. Welfare cases are a matter for the expertise of people who understand the welfare system and get the right details out of the claimant about his or her circumstances. To turn it all into litigation has been done to too great an extent because people think of legal aid and lawyers-lawyers’ letters and lawyers’ claims-and those are the areas where I think change will come. Obviously, it has to be reinforced by the courts, and that is why I have a wider study of family law going on.

Q4 Claire Perry: The Committee has heard evidence and many of us would agree that mediation is absolutely the way to go, but does that imply, therefore, that there will be increased funding streams for less litigious ways of resolving disputes?

Mr Clarke: We are continuing to fund mediation and we expect people to go to mediation first in far more cases than has been the practice until recent years. It has been growing steadily.

Q5 Claire Perry: But will there be greater funding for increased levels of mediation?

Mr Clarke: I am not sure we are increasing the total level of funding for mediation; I am advised that we are maintaining legal advice for mediation.

Q6 Claire Perry: We have a concern, again, that it is often the people who are furthest from the justice system who might need help. It is not the middle class, well-versed professional litigants we are worried about; it is the people who come into the Citizens Advice Bureau in Devizes who have real concerns and simply don’t know where to turn. My concern is that, if we are trying properly to divert people out of the legal system and into mediation but not increasing the funding for that, we will see a shortfall and people will simply throw up their hands in despair and more people will come to my surgery worrying about it. Have you considered assessing the requirement for funding more mediation?

Mr Clarke: Our aim is to maintain taxpayer support for precisely the vulnerable people who most concern you. I share that view entirely. That is what legal aid is for; it is to make sure that the less well off and sometimes the less articulate are not deprived of proper advice and advocacy in looking after their interests. The ordinary working family, even the professional middle classes, tend to fear litigation like the plague because it is very expensive and most people find it very difficult to afford, but we cannot have the taxpayer just stepping in, allowing everybody to litigate each and every problem that life throws up. All our proposals have been put forward with precisely the people you are describing in mind but when they are facing serious problems, not when they are being persuaded or induced to believe that a lawyer and litigation might help them to get something they would not have asked for which is not of fundamental or great importance to their lives.

Q7 Mr Buckland: Lord Chancellor, just developing some of the points you made in regard to special educational needs, you quite rightly made the point that it should not be adversarial. We are at a position now where the Department for Education is to issue its Green Paper on SEN in February. I understand-this has been trailed by Ministers in that Department-that they want to look seriously at the whole adversarial system when it comes to appeals, particularly those to the upper tier tribunal. That is important work. Would you accept that that work needs to join up with the work being done by your Department when looking at removing the scope of legal aid for representation at SEN tribunals? How much joined-up thinking is going on here so that parents don’t end up being disadvantaged?

Mr Clarke: I believe and hope that we are in close contact with the Department for Education. I agree with the point behind your question, Mr Buckland. We all encounter some of these cases in our constituencies. It has always seemed to me that they are very legalistic almost from the word go. I think that some of the voluntary bodies that help parents, which is very important, tend to take a rather legalistic approach. We have drifted into a tradition where it becomes very adversarial. Is that the best way of resolving the very serious and important question of how best to further the education of a child who is suffering from some particular disadvantage? I don’t think it is. Underlying the whole thing is the question of educational expertise that should be objectively applied, not who has the best legal arguments and who can best master the process. I think that the Department for Education and ourselves are going in the same direction, both believing that it is an extremely serious subject. There is no more serious problem for some families than making sure their child is not disadvantaged in his or her education by some special problem.

Q8 Mr Buckland: I move to a slightly different issue relating to family legal aid and what I will call the domestic violence test: in other words, no legal aid unless domestic violence has been present within the particular scenario. There is a problem, is there not, because there does not seem to be a unified definition of what domestic violence means? I think that in the guidance issued by the MoJ there is one definition of domestic violence which looks rather wide; it talks about violence against the family, which could involve violence against children, but the definition that has been agreed between ACPO, the CPS and the Government is a somewhat narrower one and relates to violence between adults. Would you agree that there needs to be a very careful definition of what domestic violence means so that when decisions are made about whether cases come into scope decision makers have very clear parameters, practitioners know where the parameters lie and we don’t end up with appeals to funding review committees with lots of adversarial arguments about whether or not cases fall within scope?

Mr Clarke: I agree with the points you are making; I can see all those dangers. We are not consciously changing the definition of domestic violence. We are retaining legal aid availability.

Q9 Chair: There are several definitions of that.

Mr Clarke: That is right. As Mr Buckland has said, there is no fixed and certain one. I think he is right to say that we will probably have to start developing this in practice when people say that a particular case has an element of domestic violence and another one does not. There are those who argue that domestic violence goes beyond physical violence, but they become particularly difficult to define. We are consulting. If I may say so, you raise a very real problem-if we are restricting it to domestic violence cases, what exactly is meant by "domestic violence"? I take on board the point that we will probably need to be more precise in the definition we are applying as long as we do not make it too pedantic.

Q10 Chair: Are you not looking for an objective definition as opposed to one which might appear to be a perverse incentive to allege domestic violence as a passport to legal aid?

Mr Clarke: We have thought about that problem. There is a risk that some people will suddenly decide there is a domestic violence content to a family dispute and they might not have said there was any domestic violence if they could have got legal aid without alleging that. We will just have to guard against that. Let’s face it: the law is full of occasions when you are trying to guard against being misled by people who are colouring their claims or putting in something that isn’t genuine. That’s life; that is what we are all used to in courts and tribunals.

Q11 Karl Turner: I think you said that we are particularly generous with legal aid in this country, but is it not right that you compare us with countries which use very different systems of law: inquisitorial systems as opposed to our own adversarial system?

Mr Clarke: I agree that some comparisons are open to that argument. If you compare the cost per head with continental Europe I accept that people could come back with the argument, "But that is not an adversarial system." I am a supporter of our adversarial system in criminal trials, ordinary civil cases and so on. Therefore, we have made comparisons normally with Commonwealth countries with the common law system. If you compare us with Australia, New Zealand and Canada, the same figures emerge. Not only are we more expensive; we are usually miles more expensive, although it may be-one must be cautious with all the statistics in this area-we are not comparing exactly like with like, but we are miles ahead. The only jurisdiction anybody in our Department has been able to find that is possibly more expensive is Northern Ireland. It appears to have a slightly more generous system than either England and Wales or Scotland. But the gap is quite substantial; it can be quite a small number of pounds per head to over £20 per head.

Karl Turner: I am not sure that many publicly funded solicitors and barristers would agree with that, but I am grateful for what you have said.

Q12 Ben Gummer: Lord Chancellor, just following on from Mr Buckland’s questions, there seems to be an omission in scope and that is judicial review. I wonder what attention is being paid to the rising cost of judicial reviews, particularly given the fact that many areas of law where legal aid is being removed, for instance in exclusions and SEN tribunals, do end up as expensive judicial reviews.

Mr Clarke: We are retaining judicial review in scope. The reason we propose to do that is that you are talking about cases where the citizen is challenging the state or one of its agencies-central or local government or a quango-on some administrative decision. It is key that no citizen should be barred from that, so we keep it in legal aid. I share your concern, Mr Gummer, about the rising cost of judicial review; it has exploded. Judicial review is really a judge-made principle going back about a quarter of a century. I have always defended it. With the modern Executive, with modern Government, with the powers at the hands of officials at every level in so many bodies, it is absolutely essential that every individual citizen should be protected against aberrant or arbitrary decision making, but it has exploded. Therefore, partly encouraged by lawyers who are active in the field, no doubt with the best possible motives, every time a decision is taken which any citizen disagrees with, the next thing you are talking about is judicial review. Leave is given for judicial review over and over again in a vast number of cases by the courts.

We looked at that and shared all those concerns and were driven back to the point I made when I started. If we start saying that the legal aid authorities are to distinguish between which people of limited means get legal aid for judicial review for this but not for that, we will get into a complete nightmare. Therefore, the proposals on which we are consulting are that we keep judicial review in scope for all legal aid open to argument, so perhaps in consultation you can find some way of restricting it to get rid of the more trivial cases that does not give rise to serious doubts about whether poor people will be stopped from challenging what might be an arbitrary or unfair decision.

Q13 Ben Gummer: To move on to the issue of litigants in person, Helen Edwards in evidence two days ago said that the MoJ expected no additional cost as a result of moving various areas out of scope. That seems to be completely contrary to the evidence of a research paper done by the DCA in 2005 which confirmed what seems to be the opinion of every barrister and judge-I am not a barrister-that litigants in person considerably extend the time taken in court. Why does the Ministry of Justice seem to take a contrary view?

Mr Clarke: Broadly, our expectation is that if there is an increase in the number of litigants in person it will be balanced by a reduction in the number of cases where people have decided not to proceed with the claim at all, because they will not proceed with actions that are no longer in the scope of legal aid. That is broadly the argument. Otherwise, you are into a very uncertain area of prediction. I doubt whether Helen Edwards denied that when you do have a case of a litigant in person it takes longer. I have known in my time very experienced litigants in person who did it as a hobby and were very good; they knew what was relevant and got on with the case. But I personally accept that every court dreads suddenly discovering that there is a difficult case where one of the litigants insists on appearing in person. I quite agree with your point that it will take far longer, because not only is the litigant not well versed in the law and procedure, but the main problem is trying to get across to the litigant what is relevant to the particular question before the court. I hope there is not a surge in litigants in person, but in cost terms cutting scope will offset, probably, any slight increased cost given the fact that some cases-we don’t know how many-might take a little longer because you have litigants in person.

Q14 Chair: It is not true at every level. One judge in the small claims court told the Committee that if the parties in a case we watched had not been represented it could have been concluded in half the time it took.

Mr Clarke: That is true of tribunals as well. I think that in some of the family courts it is most helpful for the judge to listen to the actual parents. Tribunals were designed with the whole point that you would not need lawyers. I have been here even longer than you have, Sir Alan. We probably both remember the debates about employment tribunals. A great virtue claimed on all sides was that you would not need lawyers making long addresses to the court on both sides; it would be sensible men of the world sitting on the tribunal who would listen to the two parties and give a ruling. They take longer once you have great learned submissions being made on both sides at a level that no one ever contemplated when the tribunals were set up.

Q15 Ben Gummer: May I ask one final question about the differential between the criminal and civil bar? Everyone is aware of the pressures that the criminal bar has been under over the last 10 years. Is the Department sensitive to the considerable concerns that there are, especially amongst the judiciary, about the quality of representation?

Mr Clarke: Yes. My anecdotal experience is that all the judiciary complain that the quality of representation is not what it was. How far that is because the older generation always say that things are not what they were in practically every walk of life I am not sure. We are quite sensitive to the pressures that what we are proposing will impose on the legal profession. They have already been subject to considerable squeezes in recent years and the freezing of fees and we have regard to that, but plainly it is not sustainable to have a situation where such a high proportion of practitioners are so dependent on so much legal aid for their living. The first purpose of legal aid is not to keep up the numbers of the legal profession but to provide access to law for the most vulnerable in the most serious cases. I think the quality of advocacy is being addressed. There is a lot of talk about addressing the quality of advocacy which I am sure the courts and the professions themselves will address if they are persuaded it is a serious concern.

Q16 Chair: You talked a moment ago about tribunals not needing lawyers, but the people who advise those affected in tribunal cases, for example, if it is not done by lawyers, are often experienced people in CABs, neighbourhood law centres and other voluntary organisations who at the moment are assisted by contracts with the Legal Services Commission. It is not clear from the statement so far how they are going to be supported in this kind of work. Even though it draws quite heavily on volunteers, there are perhaps still significant costs and there need to be some full-time and well-trained people to provide that kind of advice but not necessarily lawyers. How are they going to fund it?

Mr Clarke: On employment law trade unions provide a lot of advice, and employers can have access to advice from the local chamber and so on. I think that the role of citizens advice bureaux predominantly and other organisations of that kind is very important. We will have to keep an eye on the impact of changes generally. They are facing pressures mainly because of the acute financial problems and the fact that there are to be reductions in public expenditure. Not every citizens advice bureau receives any legal aid funding; only some do, but because of the changes we are making in scope I accept that citizens advice bureaux may see some withdrawal of that.

We are not the Department that is the biggest supporter of citizens advice bureaux; the main source of grant aid to CABs is the Department for Business. I think that most citizens advice bureaux also look to their local authorities overwhelmingly to provide finance. I am conscious of the problem. I think that the role of CABs is becoming more important, not less. All of us as MPs are conscious of the fact that if you have a good citizens advice bureau, which I happen to have in Nottingham next to me, it is quite important to the people we are talking about. Therefore, the Government as a whole is trying to deliver that; it is part of trying to ensure that the necessary reductions in public expenditure don’t bear down too heavily on parts of the voluntary sector that need financing as long as they are efficient. But I think that legal aid was extended to them less than 10 years ago and it is not the principal source of the funding of CABs.

Q17 Claire Perry: The welfare and benefits system has become incredibly complex; I welcome our proposals to simplify it. I too have excellent CABs in Devizes, Pewsey and the central Wiltshire area. I send to them lots of cases where people are struggling with a very complicated welfare and benefits system. I believe that that tribunal advice in particular is funded through your support for those organisations. I would like to make a plea for unring-fencing as a minimum so that the very valuable services they provide do not have to be cut to comply with the budget cut for one Department versus another. I think it is the joined-up nature of the advocacy they do that is so vital for so many people. I worry that what we will do is simply divert people away without support.

Mr Clarke: I accept the underlying point. I don’t think legal aid should be the major source of their income. It goes into the general pot; it is not legal advice that a lot of their clients need; it is debt advice and a much wider range of general well-informed advice that they require. Ministers collectively are concerned about this. We have been in touch with each other and we will have to see what we can do with citizens advice bureaux, which at the moment are mainly alarmed by what local authorities are doing to them. We must look at that.

Q18 Chair: You should hear the ones that are having problems with the Legal Services Commission.

Mr Clarke: I quite accept that the Legal Services Commission and its successor will withdraw a great deal of the legal aid funding that at the moment goes to tribunal work and so on that we are taking out of scope. We have to make sure that one way or another the right level of advice, as long as it is provided efficiently, is available for the whole range of family, employment and debt problems that take so many citizens to the citizens advice bureau which serves a very valuable function.

Q19 Mr Buckland: You have answered the point about CABs, but may I press you on law centres, the majority of which will have their funding from the LSC? The Wiltshire law centre in my constituency has about £400,000 of funding for welfare, debt and housing advice. Quite rightly, they are worried about their future funding streams. Without law centres we will have advice deserts when it comes to those areas of advice and representation. I would like to press you about how we can make those law centres viable in the future and whether we must have a special arrangement or a different way of looking at funding them, as opposed to funding them per head of type of case, because of the invaluable work that they do.

Mr Clarke: We will consider that as part of the consultation and I accept that they are an important part of the picture. Law centres are not universal. There are some law centres across the country, so it tends to be a local thing. The first thing we will discover is the impact on particular law centres of the changes in scope that are proposed. Assuming it is a good law centre that is delivering efficiently-in my limited experience of them they are a bit variable in quality-we will listen to their representations. Obviously, what we cannot do is start altering the scope to make sure that particularly law centres are protected if it undermines our intention of concentrating the reduced amount we intend to continue to spend on legal aid on the more serious cases.

Q20 Chris Evans: The Jackson review endorsed before-the-event insurance. In what specific cases do you think that would be most effective?

Mr Clarke: I don’t think there will be a huge take-up of before-the-event insurance, but at some stage we will try to discuss this with the insurance industry to see if people can be made more widely aware of it. The trouble is that people don’t think they might be involved in litigation so they don’t think of taking out insurance beforehand on the off-chance they would. But it is available on a limited scale. It doesn’t cost you much if it is added to a household or similar policy. It would be interesting to see whether, in reaction to the changes that we are making following Jackson’s recommendations, a market is stimulated for before-the-event insurance. That would have to be considered with the insurance companies to see whether they can produce a product which they think they can market.

Q21 Chris Evans: If you introduced it, would it be a licence to print money for the insurance companies?

Mr Clarke: One relies in the insurance business as in others on competition, so I trust it will not be a licence to print money. Insurance is not an easy business to make money because the rise and fall of claims is unpredictable. I hope not, but my view is that before-the-event insurance is worth exploring. Contact with the insurance industry will make one more aware of whether it is likely to take off on any scale.

Q22 Chris Evans: What specific steps could you take to stimulate the market? Have there been any discussions with the insurance companies about stimulating the market?

Mr Clarke: I haven’t had any direct contact, but we have talked about having contact with the Association of British Insurers. I don’t know whether any official in my Department has. We undoubtedly will at some stage as part of the consultation on the Jackson proposals.

Q23 Chris Evans: How would you respond to criticisms that it is usually sold as an add-on or an afterthought and fails to cover specific circumstances when it is likely to be needed?

Mr Clarke: Before-the-event insurance?

Chris Evans: Yes.

Mr Clarke: Yes. I am sure that the scope of cover provided isn’t totally comprehensive. Frankly, I haven’t considered the case; I don’t have a strong view on whether what is provided at the moment, which is very limited in scale, meets what would be desirable to make sure that people cover themselves for the eventuality.

Q24 Chris Evans: You say you do not have a strong view on it, yet in the past you have supported before-the-event insurance. How have you arrived at this support if you do not have a strong view on before-the-event insurance?

Mr Clarke: We support it, and it may grow. It is worth exploring and discussing with the insurance business. That is where I am on before-the-event insurance. I don’t think we have ever held it out as necessarily something that is likely to take off as a total alternative solution to the problems of changing the nature of "no win, no fee" at the moment.

Chair: We will turn to Magistrates’ Court closures.

Q25 Mr Llwyd: Yesterday’s announcement was greeted with great dismay by many Members of Parliament and many people outside. In his response to the consultation the Lord Chief Justice suggested to the Ministry of Justice that more information was required on 79 of the proposed 157 court closures. What further information was sought by the Ministry of Justice before it took the decision announced yesterday?

Mr Clarke: The Lord Chief Justice was not trying to usurp decision making in this field. What he and others did was to pass on the comments and concerns of the judiciary, in his case, across the country about particular things. The whole point of the consultation we carried out was to see whether people thought we were putting forward the right information and to collect more information. The impact assessments that will now be available have been brought up to date, in some cases no doubt changed, in the light of the response that we got. I think the process that we undertook once we announced we were consulting was quite exhaustive-far more exhaustive than would have been followed 20 years ago in cases of this kind. The result was that before taking the decisions we were, I have no doubt, much better informed than when we started. That was the whole point of the process.

Q26 Mr Llwyd: He did say, did he not, very strongly in terms that 32 of the courts should have been retained? Was there any further consultation or dialogue with the Lord Chief Justice before the announcement?

Mr Clarke: I have quite regular contact with the Lord Chief Justice but we did not ever get into court-by-court conversations. He made his representations really collating the views coming in across the country, but I am quite sure the Lord Chief Justice didn’t believe that somehow he would lay down some ruling, target or decision on exactly how many had to be closed. I don’t think anybody has challenged the general idea that we need to readdress the underuse of the Court Estate and the quite inadequate state of some of it.

Q27 Chair: I think it is slightly misleading to suggest that the covering letter sent by the Lord Chief Justice was in the form, "Here are some views which have been passed on to me that I thought you might like to see." They seemed to me to be general concerns.

Mr Clarke: No; all right, but that was what it was based on. The underlying information was a collation of what had come in from all over the country. We had got a lot of it ourselves directly.

Q28 Mr Llwyd: He also gave evidence to this Committee and was very forthright in suggesting that certain courts should be kept open, one of which happened to be in my constituency.

Mr Clarke: At Pwllheli?

Mr Llwyd: Yes.

Mr Clarke: But, quite interestingly, there were local people who supported the closure of Pwllheli. I am sure you will admit, Mr Llwyd, that the facilities or usage at Pwllheli are not the best and most up to date.

Q29 Mr Llwyd: Since we are talking about a Welsh court, may I put it to you that your figures for back maintenance costs of Welsh courts were an absolute fantasy? I had to table two parliamentary questions and eventually found that the figures were inflated by over 150%. Do you call that a reasonable consultation?

Mr Clarke: First, I will admit that I do not have in my head figures about maintenance backlogs on courts in Wales, but it is a perfectly relevant consideration when it comes to looking to the future of the Estate. If better information was produced, that’s fine. It sounds as though it was before the decisions were taken and as part of the consultation. Consultation is not flawed if, when you go out with your draft proposals and the best evidence you have to support them, people come back and point out that some of it is wrong. We did take into account the information that came back to us before taking the final decisions. This probably isn’t the time and place to go through it court by court in Wales and I understand there is anger in some sections of the population, but opinion on some of them was divided. For some of the Welsh courts we got positive support for closing down what were old-fashioned, out-of-date and underused courts.

Q30 Mr Llwyd: You said earlier on that it was such a detailed consultation compared with what would have happened 20 years ago. I am saying to you that the Welsh consultation was predicated on a load of nonsense in terms of the figures.

Mr Clarke: I am pretty certain you put that in quite pointedly the moment you discovered that the proposals were made. What happens when people claim that is that you go back and re-examine what you believe is the case for the proposal.

Q31 Mr Llwyd: I do not want to reargue the case now, but the point is that it took two different parliamentary questions to obtain adequate information from your Under-Secretary. Initially, the inflated figure was 150% higher than what was discovered after the second parliamentary question was answered. That’s not very good, is it?

Mr Clarke: I hope you concluded by reaching agreement with the Parliamentary Under-Secretary of State on what figure was relevant for arrears of maintenance.

Q32 Mr Llwyd: I do not know upon what basis they were arrived at anyway, which brings me to another question. It is alleged that the £41.5 million savings exclude closure costs. How much will these closures cost?

Mr Clarke: Off the cuff, the short-term cost of the closures is a little over £20 million.

Q33 Mr Llwyd: Therefore, yesterday’s statement was not exactly forthright, plain and honest because it should have been £21.5 million, should it not?

Mr Clarke: I was there for yesterday’s statement. I don’t think anybody held back the fact that there was a cost of closures. If you go to the costing as a whole, you have to draw a distinction between the long-term continuing savings resulting from the fact that you are no longer maintaining a building, there are savings in staff costs and you are no longer facing the risks of large maintenance bills against the one-off costs that tend to be incurred when you first go into closure.

Q34 Mr Llwyd: What weight was given to the impact on police time in regard to Magistrates’ Courts closures and, I add, the extra travel time incurred by the Probation Service, legal aid lawyers, victim support, etcetera?

Mr Clarke: In each and every case that was a perfectly relevant and important consideration. It cut both ways court by court across the country. In some cases the police and prosecution were quite keen to see courts closed because they had to keep travelling to remote courts in inconvenient places. For others, the police and Probation Service would come up with the opposite argument and talked about the inconvenience of having to go further. In each case what you have to do is weigh up a whole lot of factors before coming to a balanced view of how best to provide a modern, efficient court system. Certainly, we had to have regard to the views of all those agencies that support the courts on the impact it might have on them. The main thing we want to do with police and probation is cut down the amount of court attendance anyway. Proper use of video conferencing and virtual courts and better management of cases so that abortive hearings are minimised are all things to which we attach great importance and which we will pursue.

Q35 Elizabeth Truss: Lord Chancellor, I also have a Magistrates’ Court that is to be closed in Thetford, in my constituency. I am particularly interested to understand how the court closures fit with the devolution agenda in terms of where the decision is being made and also how we improve the efficiency of the overall criminal justice process within that. Is it being considered in the light of the overall devolution agenda, payment by results and so on, and how does that fit together?

Mr Clarke: I agree that the localism and devolution agenda is extremely important and has to be applied to courts in context. Most members of the public rarely go to court in their whole lives. One can meet quite a lot of people who have never been to a court in their lives at all as a witness or in any other way. It is not like a post office or the village pub; it is not something that people associate with their daily lives. Large numbers of witnesses or members of the public when they do go to court find themselves in very unsatisfactory conditions. There is no proper place to wait; you hang around all day; the victim’s family is muddled up with the accused’s family and all of the witnesses are standing around as well. The facilities can be good or quite primitive; and far too many people find themselves towed along to a court for an abortive hearing and must go away and come back on another day. All those things need to be addressed. Although I am laying on the failings where they exist in the worst of the system, the fact is there is no point in keeping all that on the basis that it is all part of local justice; it is not. It is a system that requires modernising and needs to be more efficient. People are now used to doing things on the telephone. If you have proper video conferencing facilities they will handle things more effectively. Norfolk had a lot of courts and there was a range of opinions on how best to provide the best facilities.

Q36 Chair: If you look at counties like Northumberland, there are large distances left without courts. Distance does not seem to have been a big factor.

Mr Clarke: I don’t claim that everybody is within 60 minutes by public transport; we didn’t achieve that, but we had set that as an aim. I accept your obvious knowledge of Northumberland. There are places where we haven’t quite made it, but we did have regard to that. In most cases, the overwhelming majority of the population will be within 60 minutes of a court, but in scattered rural areas it was tricky, so Wales and Northumberland were difficult.

Q37 Mr Llwyd: Have you considered the effect upon the magistracy? In other words, it has come to my knowledge that many people now will either resign in the patch that I am referring to or good people will not put their names forward to travel an hour and a half to a distant court they know nothing about.

Mr Clarke: I hope that doesn’t happen. A lot of the responses to the consultation were, not surprisingly, from magistrates who wished to retain the courts with which they were familiar and associated themselves and so on, but I don’t think justice will lose its local quality, not least because the magistracy is a unique and very important institution in which local lay people from a wide range of backgrounds volunteer to contribute to justice. I am not talking about any particular case. Quite a lot of the complaints I received about particular courts, even round the House from Members of Parliament, were about inconvenient journeys. I don’t know Wales so well, but I am pretty certain that in many cases most of their constituents made those journeys quite frequently, because the places that they objected to the distances of were ones that most of the population went to shop and for practically every other local purpose in their daily lives.

Q38 Chair: You can’t say that about Bedlington.

Mr Clarke: People sometimes lay it on. Salford and Manchester is the classic example. You can walk from the Salford court to the Manchester court. I believe that the Manchester court-I am open to correction by Hazel Blears-is nearer Salford railway station than the Salford court. People did slightly exaggerate the distances being brought in, but before you all come back at me I quite agree that Northumberland, Wales and Norfolk are somewhat different.

Q39 Chair: If a bench of magistrates decides that it is becoming rather remote from some part of its area, is there any reason at all why it should not decide to convene in another town and hold some hearings there, either because the court room happens still to be there because it is being used by the coroner and others or because there are other premises which are reasonably suitable for the purpose, especially if the case does not have some of the difficulties to which you have referred? My assumption is that they do have the legal power to do that. Is that the case?

Mr Clarke: There is no objection to that in principle. It has been considered and it will continue to be considered. You run into arguments about security and suitability, because you expect a modern court to have a reasonable level of security-somewhere to hold the accused sometimes and the ability to separate out the various witnesses and so on, so that they are not all thrown together. We will look at that. The irony is that the idea that the Magistrates’ Court sits in the local pub, or above the police station, is what the whole system has spent the last 50 years trying to get away from by modern, purpose-built courts, but if in the interests of localism the magistrates can find some practical means of finding more informal court settings I certainly would not be against it.

Q40 Chair: But that is where many of the courts are. Many of the courts that you are closing are in fact on top of police stations.

Mr Clarke: Quite a few are on top of police stations. There used to be some very primitive ones on top of police stations. There are a few left that are on top of police stations. I am sure that at one time it was thought to be frightfully important that we got away from these rooms above police stations which were thought to be inadequate for the purpose.

Q41 Elizabeth Truss: In response to the point about people not going to the court in the way they go to the post office, should not one of the objectives of the justice system be greater openness and justice being seen to be done so people are able to go into court and see the proceedings? I feel that too often justice is something that people believe is very distant; they do not necessarily have confidence in the system. Would not people have more confidence if courts were more open and they could see what was going on?

Mr Clarke: I agree with all that. I think public confidence in justice and the transparency of justice is a perfectly sound agenda. I was merely pointing out that when it comes to inconvenience of travel, 99% of the population don’t have to make such a journey more than once or very occasionally. It’s not something that most of us hope to do very often. Most people don’t find themselves inside the local court and large sections of the population have probably never been in the local Magistrates’ Court in their lives.

Chair: We need to turn to sentencing issues.

Q42 Mr Buckland: I want to talk about the rehabilitation revolution with particular reference to cross-departmental working, Lord Chancellor. The area of great interest has been mental health diversion, whether it be at the police station or, most importantly, at sentence. I will give you an example with which you are probably very familiar, but it is important to put it on the record. The Criminal Justice Act 2003 created a community order with a mental health rehabilitation condition. It is hardly ever used because there is just no provision available. Therefore, a judge will not have that option open to them on a pre-sentence report. I note that the Green Paper makes reference to it and talks about piloting. What degree of work has been done with the Department of Health on that issue? For example, has there been any economic modelling so that we have an idea of the unit cost of these proposals so that sentencers are in a more informed position going into the future?

Mr Clarke: It is absolutely essential that we work very closely together. Andrew Lansley and I and our colleagues are working very closely together on commissioning for the mental health services which people in prison and offenders require, but also on developing our proposals for diverting into either secure or community services those who ought properly to be diverted because that is the best way of minimising the risks of future criminality. We haven’t reached the stage where we can start to produce any economic modelling. Obviously, we are both working on that within our respective budgets, but there is no problem between the two Departments. Both Departments give very high priority to developing this. As far as I am aware, it is widely accepted that at the moment we have too many people in prison suffering from mental illness. The services are probably much better than they used to be, but in many cases it’s not the best and most adequate service one can provide now and the public would be better served if we tackled the mental health problems more effectively.

Q43 Mr Buckland: At the moment if you have an acute problem, beds are available under the Mental Health Act. Very often we are putting people with, frankly, less acute problems into that particular regime inappropriately, and it is in the community provision that is desperately needed. Cutting to the chase, by, let’s say, 2014, the end of the review period, will sentencers be in a position where they will have as part of their menu of options mental health treatment as part of a community order?

Mr Clarke: I hope so. As you say, they do now but it varies enormously. In the end, everything depends on the local availability of service, the better flow of information to sentencers and making sure that commissioning is joined up-that there isn’t a difference of approach between commissioning for offenders compared with commissioning for the general population, certainly in terms of tackling the mental health element of their problems.

Q44 Chair: Are you having a tough time with some of these issues? Do you have cross-Cabinet support and understanding of the kind of gains that you seek to make?

Mr Clarke: Total cross-Cabinet support. I don’t know about having a tough time. I am used to having a tough time; it is the reason I enjoy doing it. I have never had a popular policy to implement in my life, but the mainstream part of this one is largely popular. As to support, the Government is run on particularly collective lines and it is run very well collectively, so all the policy, including the documents I have consulted on and announcements I have made on the courts system, legal aid and sentencing, have been cleared by all my colleagues. They have been discussed in Cabinet Committees and with the Prime Minister. It is all clear. There is no dissent. I have not been producing this in isolation in the Ministry of Justice and waiting to disclose it to my colleagues until we have thought it through. This is a collective approach. The mainstream of the policy does not seem to be attracting any great resistance. I have been complaining about the very high level of reoffending and the failure of the system to reduce it. I have been emphasising that we should develop, therefore, ways of tackling this. That takes one into areas like mental health, drug and alcohol abuse, failure to train and prepare people for employment and so on. It’s not possible in this world to have something that is nem con, but I am not aware of any great criticism of that. Therefore, it’s right to give that priority. Of course, there’s criticism of some parts but they don’t come from within the Government and they tend to be rather theoretical arguments that the drift of this, which we estimate will lead to some reduction in the prison population, is somehow flawed because it might lead to a reduction in the prison population. I regard that as a rather fringe view and it is not one that is going on inside the Government.

Q45 Chair: Are some parts of the Government less willing to take on uninformed press comment than your Department?

Mr Clarke: I am sure that every member of the Government is perfectly willing to take on uninformed press comment from wherever it comes.

Q46 Claire Perry: Would you, therefore, like to put on the record that you share my view that prison works often but is not the total answer to securing rehabilitation?

Mr Clarke: Yes. Prison works as a place for sentencing people. It saves people from crime while they are inside; where it is failing is that too many people released from prison reoffend. That has been my mantra all the way through. When I heard this morning that apparently the Home Secretary had disagreed with me I looked at what she said.

Claire Perry: She agrees.

Mr Clarke: She said exactly the same things. One doesn’t want to turn it into a mantra, but prison is the right punishment for serious criminals. Prison does give some relief from crime while they are inside. Prison at the moment is not succeeding in getting reoffending rates down to where they are, which is why we have rehabilitation. It isn’t even my policy originally. I have got very enthused by it. The only two new things I am seized of are the priority of reoffending and then payment by results for rehabilitation. They are the two things that we are seized of. Most of this comes from opposition when I was not shadowing this situation. I was aware of the work of Nick Herbert and Edward Garnier; I read the document they produced on prisons which they labelled a rehabilitation revolution. Certainly, as far as our party is concerned, it is a steady and consistent development. I haven’t met a Liberal Democrat who disagrees with it. So that is where the coalition is. I don’t mind people from outside attacking me and I am happy to carry on an argument about the drift of policy over the last 20 years backwards and forwards and what people thought of it, but it isn’t at the heart of the Government’s policy and there isn’t any disagreement on the Government’s key policy.

Q47 Chair: I hope you are also aware of the work done by members of all three parties on this Committee in the report on Justice Reinvestment which set out in detail some of the things on which you are currently working.

Mr Clarke: The statement in the House of Commons went surprisingly well. I came out of the statement in the House of Commons quite satisfied that it had gone much quieter than I expected-that the overwhelming majority of people from all three parties did not disagree with any of this, which is very encouraging, yet it is all rather challenging in these times. Sections of the press flared up afterwards, but that was on a totally different angle.

Chair: I am going to change slightly the order in which we proceed and ask Mr Turner to come in at this point.

Q48 Karl Turner: Lord Chancellor, there have been many attempts by the previous Government to reduce custodial sentences. In my experience judges in the Crown Court and lay magistrates and district judges in the Magistrates’ Court do their very best to avoid sending people to custody. It is very often a last resort. What do you think the judiciary should be doing to deal with things and how you think their discretion can be increased?

Mr Clarke: First, I agree with your analysis, Mr Turner, but for that reason. For example, I have never advocated that we abandon short-term prison sentences. Every sensible magistrate will tell you and me that usually you have to sentence people to a short term of imprisonment when everything else has been tried and there is no way you can deal with them and protect the public without imposing a short prison sentence. What we all expect every level of the judiciary to do is to send people to prison when it is essential to do that for public protection. In some cases it is obvious because of the severity of the offence that they have committed; in others you form a judgment as to whether it is really acceptable to deal with them in any other way and whether there is any alternative from which they are likely to benefit.

The policy is not based on some general objective or target of reducing the number of people in prison. What I think has been the unintended explosion in prison numbers in recent years has to be stopped and contained for financial reasons. The last Government was solemnly planning for 95,000 prisoners by the end of the Carter review period. The prison population exploded so quickly during the last Government that they wound up having to let people out before they had finished their sentence because they had nowhere to put them. We are quite determined to avoid a system of early release to make room for newcomers in the prisons. If we manage to stabilise the population at that population which must be in prison for the protection of the public, that seems to be an intelligent and sensible development of policy. But I share your description of how the bench approaches it at every level; I agree with you.

Q49 Karl Turner: In relation to indeterminate sentences I agree with what you say in the Green Paper. I think I am right in saying that currently over 3,000 people are serving indeterminate public protection sentences who are past tariff point. First, why did you not do away entirely with IPPs? Quite honestly, I do not think they work. Secondly, what will you do about reviewing those people who are still serving IPPs? Can you not deal with that situation?

Mr Clarke: We have over 3,000 who have finished their punitive sentence. We have about 2,000 who are post-tariff. Since the system started, only 190 have been released once they have an IPP. This isn’t remotely what anybody ever intended-that we have a growing population of people sitting in prison without the first idea of when or if they are to be released. They are told they will be released if they can satisfy the Parole Board that they are a minimal risk to the public, but it’s quite difficult to satisfy anybody when you are sitting in prison serving your sentence. So I think it cries out for reform.

You suggest total abolition and you are not alone; there are quite a lot of people in the legal system who think they were a mistake and should be abolished. The reason we decided not to do that was that some of these 3,000 cases-neither you nor I would deceive ourselves-are quite dangerous and serious high-risk prisoners, so they are not 3,000 easy people. To let them out suddenly without any assessment and say they have finished their sentence would have been unacceptable. We are going to address how the Parole Board should now deal with these 3,000 people. Is the present test a very difficult one for anybody to discharge? Should we expect the Parole Board to assume a level of risk which is one they probably can’t feel about anybody in prison before letting them out? That is how we hope to get back to an IPP system which- We are going to keep an IPP system but for the most dangerous people-those for whom Parliament originally intended it-a very much smaller number of people. That is where we are. Again, we are likely to have support for that because nobody who argued in favour of IPPs can really claim they expected it to produce what is now being produced. It wasn’t what anybody intended.

Chair: I want to move on to an important innovation about which we need to question you particularly.

Q50 Elizabeth Truss: Lord Chancellor, I was interested in the rehabilitation revolution and the evidence that has been collected internationally about how successful these types of strategy are. Perhaps you could highlight any particular countries that you think have successfully undergone this kind of change.

Mr Clarke: There is a lot of very good rehabilitation work done now in the Prison Service itself, by the Probation Service and by a vast army of volunteers or charitable bodies which in different ways, usually at a rather local level across the country, do work with offenders and ex-offenders-sometimes with all offenders and ex-offenders, sometimes with people who have taken drugs or been involved in alcohol abuse or whatever. We hope to give further incentive to that. I can’t name a country-it is an interesting question and I will try to find out-that does spectacularly better than we do. I also don’t know whether anybody anywhere has tried to use payment by results to quite the extent we intend to do to stimulate the best of all these efforts. What I like about payment by results is that we will pay for what works. What delivers the outcome you want will grow more rapidly and what was well-intentioned but fails to deliver the outcome will not get the payment from the results that are achieved. We are extending it outside the criminal justice system as well; we are using a similar approach to drug dependency problems amongst the non-offending population as well as offenders. I don’t know. As far as I am aware this is not based on an international model.

Q51 Elizabeth Truss: My understanding is that reoffending rates can often be very persistent.

Mr Clarke: Yes.

Q52 Elizabeth Truss: Some efforts can be made to drive them down but once you get to a certain level it is difficult.

Mr Clarke: I quite agree. I am being slightly frivolous in saying that I do not underestimate the British criminal classes. There is a section of the inhabitants of prison who are dishonest or violent people and, whatever you do, some of them will have to be locked up because they will come back. We have to be real. When we look at the fact that 50% of prisoners reoffend within 12 months, we are probably talking about whether we can get that down to 40%. Some of the voluntary bodies make amazing claims for what they can do on reoffending and would far exceed that, which is fine. We would wind up paying a lot of money to help them with their efforts. I am a bit cautious about the figures. I have to say that I think to take reoffending down from 50% to 40% will probably prove quite challenging. I hasten to say it is not a target; I just want it to come down. But there would be considerable public benefit from that. It will still leave you with your 40%. They are villains and they are people who will keep being sent to prison because the public expect them to be sent to prison for punishment and to give them a break from their activities.

Q53 Elizabeth Truss: If after a few years of trying this approach we find that there is a rise in crime, would you be willing to relook at the policy and change the approach?

Mr Clarke: Presumably, every Government looks at policy when crime is going down and up. When crime goes down the tendency is for the Government to claim credit for it; when it goes up the Government of the day says it is nothing to do with them and it is a matter beyond their control. Crime is very difficult to predict. The statistics are in my opinion very unreliable. It is one of those areas of debate where the statistics are used more casually, shall we say, to support certain arguments than most. Obviously, the aim of policy is to drive the level of crime downwards, certainly relative to what it would otherwise be compared with other factors. The difficulty when you look back and try to analyse it or decide what’s happening at any given moment when it moves is that there is no certainty. Political debate tends to lead to people making absolutely crystal clear, simple assertions; we have to in order to engage in public debate. No area is more complicated in terms of working out cause and effect-what actually is causing a crime to rise or fall-than law and order, and people will tend to argue what suits their case. I have my case; you know what I believe or I don’t because of what I am asserting, but I tend to qualify it by saying, "but you can argue it either way and you can’t prove it either way." That is the more sensible resolution to the debate.

I remember years ago a recorder of Birmingham who claimed to have saved the telephone boxes of Birmingham from having their boxes broken open by his savage sentences at Birmingham Quarter Sessions. Somebody pointed out that the Post Office had just changed all the boxes and put in secure ones that the guys could not get open. He still believed that it was his sentences that saved the coin-boxes in the phone boxes of Birmingham.

Q54 Elizabeth Truss: When the Permanent Secretary of the Ministry of Justice appeared before the Committee on Monday he told us that prison numbers and the capacity designed were predicated on the policy working. What happens if the numbers do not come through? What is plan B?

Mr Clarke: Plan A is to have an adequate cushion; that is what central planning has. You obviously plan policy on the basis that you will achieve your best estimate of the outcome of the policies that you are following, but I am sure he also explained that the number of residents in prisons at any time has a cushion above it in terms of capacity. At the moment I think there is a gap of 3,000 or 4,000 between the number and our capacity, but you can’t count on that because it varies quite unpredictably and you just need an adequate cushion.

We are still building new prisons; new supply is coming on stream in the next year or two. We hope to get rid of some of the older, less suitable and more costly prisons which in part will be replaced. But in the end you have to keep an eye on numbers. That was what caught out the last Government. I think they had done a lot to provoke the rapid increase that was taking place in the numbers in prison and then it overtook them. There were good stiff sentences which people were not serving in full; they were having to be released before the end to make way for others.

Q55 Chair: How can you be confident that there will be enough providers of payment-by-results services prepared to take the considerable financial risk involved?

Mr Clarke: That’s what we are testing. We expect to have at least six pilots starting next year. As soon as we took office I started getting in touch with potential providers from the private sector, the not-for-profit sector and charities-I had a look at what is happening in Peterborough which keeps being cited-to try to gauge the level of interest. Our judgment is that there is a very great deal of interest. Obviously, there is a lot more work to be done to produce a proper framework contract which can be used for a whole variety of providers that meets the policy need and gets people satisfied that they will be paid properly for their success.

Q56 Chair: Do you recognise this situation: that when a sentencer is sitting on a bench as a judge or magistrate he knows that if he passes a custodial sentence there will be a van outside ready to take the person away and that, however difficult the situation is, a place will be found somewhere, whereas if he wants to do some other form of sentencing, for instance if he believes that alcohol or drug treatment is central to dealing with that person, he will have to inquire whether there is adequate provision locally, and, if not, the default option is prison, whether or not it is most likely to reduce the reoffending potential of that person?

Mr Clarke: That was why I said effort is put into providing the best information and range of options for sentencers one possibly can. That is what half the support services devote themselves to. I would have to agree with you; that is exactly what the person imposing the sentence must be satisfied of. What we hope to do is give courts a good range of credible options so that in the judgment of the person passing the sentence they choose the thing in the public interest because it is most likely to deliver the outcome of less reoffending.

Chair: There are a couple of quick points before you are saved by the bells. We will go through the first bell and then the second one.

Q57 Ben Gummer: Lord Chancellor, I think there is an emerging consensus across the House of support for your proposals. I also think that this is an eminently winnable argument with the public. It is made more difficult by the rather lunatic application of the human rights agenda within prisons. We had one recently about the name a prisoner might be called, on which I invite you to comment. In a youth prison local to my constituency prisoners will throw their televisions out of windows and claim to self-harm the next day unless they get a television back. All of this undermines public confidence because it is associated with reform. I wonder whether you could comment on that broadly.

Mr Clarke: I agree. Briefly on the wider point you quite rightly raised, it is true that the areas of human rights and health and safety both arouse a great deal of scepticism amongst the public because they get cited in such ridiculous situations. Actually, I don’t know anybody who is not in favour of promoting health and safety; and I have not met anybody who will admit that they are flatly against the application of human rights. Usually, it is not the courts; it tends to be officialdom, circulars, advice, consultants and insurers who make the daftest possible claims about what is necessary in the name of health and safety and human rights and then produce, as you say, widespread public disapproval. We have to address these cases and make sure we stick to our human rights obligations but that the words aren’t debased by being applied to ridiculous claims by ridiculous people who get themselves publicity by getting them taken on. As to Mr Gunn, he is a serious local criminal from my part of the world. He is quite good at getting himself publicity; he seems to enjoy that nowadays.

Q58 Chair: Does he call you Mr Clarke?

Mr Clarke: What he is called doesn’t seem to be a matter of huge importance. He seems to be so unpopular that if he wanted to be called by his Christian name, which I think is Colin, no doubt the press would have objected to such friendly greetings and would have preferred that he be called Mr Gunn. Mr Gunn and his media advisers seem to regard the matter as of huge importance. He is not a person I hold in very high regard and I am very glad he is in Belmarsh.

Q59 Claire Perry: Perhaps I may also return to the revolution agenda, if you like, although perhaps it is a little early to call it that. I think there is a huge appetite, as you say, on the part of providers, in particular the St Giles Trust and other organisations, that are doing such good work and proving that their interventions really do reduce reoffending. How can we get that common-sense approach and break down some of the institutional barriers, particularly those potentially coming out of the Probation Service, to make sure you can scale up those contracts and start to see some measurable results? I fear there will be such resistance lower in the system from existing organisations that we will not be able to get the results we really need.

Mr Clarke: I agree that is quite a danger and has been a bit of a problem in the past. I am told by various people who have done work in this field that sometimes this is quite difficult. A lot depends on the governor of the local prison or the attitude of the local probation trust. We have to make sure that unnecessary obstacles aren’t put in the way. I think there is a changing climate. To go back to the first work on the rehabilitation revolution, we have focused attention and raised interest in this field in a new way, and where there are obstacles put in the way of a bureaucratic kind we will have to get rid of them. It is a danger to be aware of and I hope it will be reduced. The best probation trusts are not remotely resistant. We have to make sure that the general atmosphere throughout the Probation Service is that this is not a threat but something of an opportunity, because they can be paid out of the savings; they can participate in these schemes just as much as anybody else.

Q60 Chair: There is a bit of confusion about the role of the Probation Service as to whether it is a provider or a commissioner.

Mr Clarke: Yes, I agree; we are working on that. We have to be absolutely precise as to who is commissioning these things at what level and we have to be absolutely clear about the basis on which the providers will be rewarded. This is all the detailed work that has been going on ever since the new Government came into office, and it must continue before we put it into practice. That is why we have had lots of discussions and ideas. We will be running pilots in 2011. The reason we must have pilots is that we have to work it out. The more local it can be the better, but it must also be robust. I think that some probation trusts would be quite keen providers and would go into partnership with other people to provide it.

Q61 Chair: So, we may come up with a different model in the end?

Mr Clarke: We may. We are working on it; we are consulting on all these things. This is a Green Paper.

Chair: Lord Chancellor, thank you very much indeed for being with us today.