UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 681-v

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Justice Committee

Access to Justice: Government's proposed reforms for legal aid

Monday 14 February 2011

Professor Roger Bowles

Sarah Albon and Carolyn Downs

Evidence heard in Public Questions 262 - 351

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Justice Committee

on Monday 14 February 2011

Members present:

Sir Alan Beith (Chair)

Mr Robert Buckland

Ben Gummer

Mr Elfyn Llwyd

Elizabeth Truss

________________

Examination of Witness

Witness: Professor Roger Bowles, University of York, gave evidence.

Q262 Chair: A very warm welcome to you, Professor Bowles. We have read your work with great interest. In a moment we are going to ask you to expand on it, but I think we have to declare interests first.

Mr Llwyd: In the past I have undertaken publicly funded work in civil and criminal law as a solicitor and member of the Bar.

Mr Buckland: I am a barrister who has conducted legal aid work in the past. I don’t have any current cases at the moment, although I am still due some outstanding payments from legal aid work.

Q263 Chair: To return to your research report, we found it very helpful and interesting for our inquiry. Have you done any work since then which has in any way modified the conclusions in the report or caused you to think that there are some points you might need to go back to more systematically?

Professor Bowles: No, I haven’t. I have not had a history of doing a lot of work in the legal aid sphere. This piece of work was commissioned by the Ministry of Justice in 2008, but I haven’t done anything of substance since I wrote this report.

Q264 Chair: Just to give you an opportunity to speak more generally about it, how would you sum up the reasons for us having a legal aid system which, in the words of the Lord Chancellor, is "one of the most expensive in the world"-a fact which seemed to be sustained by your work?

Professor Bowles: One of the main points I would like to make is that there are a lot of reasons why we are spending so much more than other countries. It is to do partly with the history of legal aid, what it was set up to do and how it has grown subsequently. It is to do with the way in which people have become accustomed to resolving disputes, the high crime rate in England and Wales and the comparatively high proportion of criminal cases which come before the courts. There is a long list of reasons which perhaps we will go into in greater detail later on. I don’t think there is any single reason that says we are being particularly profligate. It is not quite a perfect storm kind of argument, but on almost all of the components of the expenditure we find ourselves in a position where we are spending more.

Q265 Chair: We have also had the Council of Europe document, which I think you share some basic data with, don’t you?

Professor Bowles: Yes.

Q266 Chair: We seem to come out top of the table there most of the time, don’t we?

Professor Bowles: Yes, we do.

Q267 Elizabeth Truss: One of the points you made about the drivers is that there are a variety of different drivers. One thing I notice, looking at the statistics, is that we have a very high cost per case. Even if the crime rate is higher and more people are eligible, there still seems to be an issue with the basic cost per case. How would you compare that particularly to the other common law countries that you looked at in your study?

Professor Bowles: I think the high cost per case depends on a lot of things. It is to do with the amount of legal services which are used in cases and the way in which the expenditure on services is managed. It is to do with some procedural issues which seem to make the volume of cases going before the courts, especially criminal cases, particularly high. In terms of why the cost per case is higher, primarily that has to do with what the legal inputs into a typical criminal case entail.

Q268 Elizabeth Truss: Are you suggesting that, compared, let’s say, to Canada, legal services are more expensive here, or the court process is more elongated so that people need more legal services during their case, and what could potentially be done about that?

Professor Bowles: It is very difficult to make direct comparisons of what the lawyers in the cases are actually doing, which is one of the things one would like to try and get at. It is that and the cost per hour, or the cost per step, that one is trying to control. In terms of comparisons with other countries, it is very difficult to pin down why it is costing so much here. What has evolved is a system for rewarding people who are doing criminal legal work. They are working in a set of procedural and substantive rules which, as it were, constrain what steps have to be followed in a case. Those things just seem to be taking longer in the UK than they would elsewhere.

Q269 Elizabeth Truss: Can I try and separate out the way the Ministry of Justice is implementing the body of law, and the extent of the body of law in Britain, and the way that laws are drawn up? What is the division between those? Could you also comment on the costs per hour between Britain and other countries and whether that is a factor?

Professor Bowles: There is a distinction between the substantive law and the procedural issues. I should say that I am an economist and not a lawyer.

Elizabeth Truss: So am I.

Professor Bowles: So there are a lot of parts of this which I find quite difficult to answer authoritatively. There are all sorts of issues that tend to come up. For example, at the magistrates’ court, when cases are being heard that potentially could go to the Crown court or could be resolved at the magistrates’ court, that is a point at which costs often seem to run out of control because of the structure and incentives for a lawyer to terminate cases at particular stages, to decide whether to go to the Crown court or whether, at the stage of a Crown court hearing having been set down, they then make a plea late in the day and everybody wastes time. The resources are not just the legal aid time. Of course there is court time as well, which is very frequently wasted in these kinds of cases.

One of the things which emerges from the comparisons with other countries-and again it is difficult to pin down very precisely-is that the way in which courts work, the way they hear cases, and the role that is assigned to the person who is making the decisions relative to what matters have to be discussed by legal representatives tend to be somewhat different. One of the reasons why spending is very high here seems to be that an awful lot of criminal cases end up with lawyers appearing in court. That is something which has been controlled to some degree in other countries.

Q270 Chair: Even in some Commonwealth jurisdictions?

Professor Bowles: Yes.

Q271 Elizabeth Truss: How do they do that? Why is England and Wales taking a different path from Canada or New Zealand in that respect?

Professor Bowles: I can’t give you a straightforward answer to that. I have looked at the expenditure figures and those sorts of things, but I don’t know enough about the differences between the details of legal procedure in criminal cases to give you a good answer to that.

Q272 Elizabeth Truss: Can I ask you again about the hourly charge or the hourly rates?

Professor Bowles: Yes. The hourly charge, again, is a difficult one. The hourly charge does depend on the complexity of the issue, what kinds of level of the court is involved, what kinds of lawyers are being used, whether there are counsel involved and those sorts of things. What one would say is that the ways of trying to control that spending per case is something which is under review at the moment. People are looking at alternative ways of setting hourly rates. I guess that is something they will be interested to look at more closely.

Q273 Elizabeth Truss: Is there an average hourly rate figure, even if there are going to be differences according to the complexity of the cases? Do other jurisdictions pay lawyers in different ways? Are there more flat rates, for example, than hourly rates?

Professor Bowles: I think even here quite a lot of the work through magistrates’ courts is dealt with on a flat-rate basis, which is clearly the best way of controlling the possibility that lawyers might try to use longer on cases than, strictly speaking, they merit. I can’t give you a straightforward answer on the hourly rates, I am afraid.

Q274 Chair: On family work, you said that over the period you studied, even though there had been a slight decline in volume, the share of family work on non-criminal spending had increased sharply as costs had more than compensated for a small fall in volume.

Professor Bowles: Yes.

Q275 Chair: Did you identify where those costs were?

Professor Bowles: No. That is the point at which it is difficult to get much further behind the sorts of figures that we were looking at. This was a relatively small-scale study that we did, I should say. We did not go into great depth. There are a lot of countries and a lot of different areas of law to try and digest. The sorts of things that people would probably argue is that third-party interests, for example, in family law cases became more prominent over that time interval. The interests of children and the interests of people beyond perhaps the husband and partner were being taken more seriously. That clearly requires a greater degree of legal representation for those wider interests.

Q276 Mr Buckland: I want to come back and ask you about the point that was made about hourly rates. Did you find that, frankly, an impossible exercise? Hourly rates are only charged in certain areas of legal aid: for example, very high cost cases in crime. The bulk of criminal work is in fact per case under a graduated fee scheme.

Professor Bowles: Yes. Whether one is looking at England and Wales or at other countries, pinning down a price per hour of service is a difficult exercise to do. It depends on how you treat preparation time and things of that kind, and what you do about lawyers who are left waiting in corridors for a length of time, and so on. I know that these things can be dealt with line by line, and you can have different rates attaching to different types of input into a case, but it is very difficult to produce a single figure that one can comfortably point to and say-

Q277 Mr Buckland: Yes, because a lot of these rates will be per day, as opposed to any particular delineation. In fact, the system has been changed quite radically in the last 20 years or so, hasn’t it?

Professor Bowles: Yes.

Q278 Mr Buckland: Does it come to this, though? The difference between England and Wales and other jurisdictions is sheer volume. We seem to do a lot more in court, whether it is family or crime, than other jurisdictions.

Professor Bowles: Yes, I think that is a large element of it. In almost all the cases we looked at, the volumes and the cost per case were higher. There has been some good news in the sense that, for example, in areas like personal injuries people have found ways of reducing legal spending. The sorts of changes that are needed to bring about those kinds of savings are really quite dramatic. One of the points I would make about the comparison with other countries is that you can find countries where income ceilings for being eligible for legal aid are very much lower, or where the ways that criminal cases are handled are very different. The problem that England and Wales has is this particularly unusual combination of these high volumes and high costs per case. That is what makes the total spending per capita look so high here relative to others.

Q279 Mr Buckland: Could one of the drivers for high costs in criminal cases be the growth in the complexity of criminal procedure, requiring more work by lawyers on procedural matters than used to be the case?

Professor Bowles: Yes. I heard somebody on the radio this morning make the point that an area of law for which the textbook was one volume a few years ago has rapidly ballooned into five volumes. From a non-legal point of view, there is good news and bad news about those sorts of things. The expansion of the case law should, at some level, mean that things are more predictable and that you know how cases ought to be resolved. The growth in the case law should, at one level, be making it cheaper to resolve disputes. But what seems to happen is that that very expansion of things opens up new possibilities, new avenues that might be explored and new issues that might be taken forward.

Q280 Mr Buckland: Yes, and more complex submissions to be made. The debate we are having here is whether or not there should be wholesale reductions in scope in legal aid or whether a different or tighter merits test could be applied. In some of the other jurisdictions that you looked at, did you notice any appreciable difference? You have mentioned one about means of payment, but was there any difference in the merits tests that were applied for legal aid purposes?

Professor Bowles: The merits tests tend to be comparatively standard. People try to get at the notion of whether a private individual with moderate means would spend their own money on the matter. That kind of test is pretty widely used. The differences come in how the advice is delivered and the degree to which representation is needed in cases. Those are the areas where the differences seem to be most appreciable. In some of the continental countries, for example, cases seem to be resolved before they come to a court hearing. There are elements of that, of course, in developments in England and Wales. There are things like fixed penalty notices, where there might be the right of appeal if you are not happy with things. There are devices that have been used to try to contain the degree to which cases have to be heard by magistrates, the Crown court or the higher courts.

Q281 Chair: They, of course, are bearing on the least expensive part of the system, aren’t they? They are bearing on the magistrates’ court area.

Professor Bowles: Yes.

Q282 Chair: As you yourself point out further in the report, one of the things that makes our judicial system cheaper-not our legal aid system-is the very small number of professional judges and the large number of unpaid lay magistrates. They are being saved from parking tickets and things like that by other mechanisms.

Professor Bowles: Yes.

Q283 Elizabeth Truss: You said earlier that, because of the complexity of the system in England and Wales, it would need a radical restructure to bring down the costs. Mr Buckland talked about the scope. What sort of radical restructure are you talking about? Would you have any specific proposals, in line with something like the way the Canadian or New Zealand system worked on a common law basis, for how the court system or the Ministry of Justice could work differently?

Professor Bowles: There is a range of possibilities one can look at. If one were looking for encouragement, something like the developments in the contingency fee arrangements in personal injury cases might be a place to look. In a sense, what has happened there is that people have tried to internalise the legal service transactions within the activity itself. In other words, it is the health service and the injured parties who, between themselves, have to sort out the bills for the legal costs of both sides, whereas previously it would have been the taxpayer supporting the injured parties more directly.

From an economic point of view there are two points. One is that there are ways of internalising the disputes to a particular sector. The other is that there may be other ways of funding the legal costs. The sort of example one might think about would be if you take, say, landlord and tenant disputes. At the moment a tenant who is not very well off can get legal aid to bring certain sorts of claims. What you could imagine happening there would be somebody saying, "That’s really a housing problem, and what we need to do is to internalise the legal resources we need to use on resolving those housing issues within the housing sector itself." You might, for example, imagine a scheme where, when people enter contracts for the provision of housing, both sides have to indemnify themselves against the possibility that there will be a dispute and that legal costs would be entailed.

In countries such as Germany, for example, there is very heavy reliance on legal expenses insurance, which is designed to try to anticipate the sorts of legal problems that citizens might find themselves running into, and to make sure they have alternatives to a reliance on a publicly funded legal service. That would be an example of a rather radical way of going about things. From an economic point of view, as I say, that doesn’t necessarily resolve the issue, because those costs may still be falling on the public sector, and it is still the health authority that is paying the lawyers and the costs of the damages. Although you may get a reduction in the legal aid budget, you would not necessarily get a saving on the amount of resources going into resolving those disputes.

Q284 Chair: Isn’t it potentially beneficial, from the standpoint of reducing cost, if an authority or a public body has some of the budgetary responsibility for the legal costs that arise from careless or bad decision making?

Professor Bowles: Yes, you can certainly make that argument. The incentive effects of those kinds of developments can be quite complex to track. For example, if the cost of settling cases goes up, then the legal defence costs of the doctors are going to go up, which may be paid by health authorities or the doctors. There are various models you can have of how the insurance arrangements work. It does depend very much on the pool of people you can rely on to meet the costs at the end of the day. The disputes have to be resolved. Legal aid as a public resource to settle matters can be a costly option, but there is then also the issue of what the cost would be of not having those arrangements in place. Those can be considerable for people as well.

One of the implications I would like to draw attention to is that the countries with which comparisons have been made have developed these institutions over quite long periods of time. The legal aid arrangements are embedded in wider structures of things. To just go in and say, "Okay, we are going to take that category of work out of legal aid" may be attractive from a public expenditure control perspective in the short term, but it does become an issue about how those disputes are going to be resolved, because in the end somebody is going to have to devote time to it.

Q285 Ben Gummer: Professor Bowles, I know you said it is difficult to compare the hourly rates of lawyers across jurisdictions, but do you have any idea-even if it is a broadly anecdotal one-about the comparability of lawyers’ incomes?

Professor Bowles: That is an interesting one. I didn’t think of looking at that. I suppose the reason for doing that is that the legal professions tend to be very heterogeneous so that you have distinctions between solicitors and barristers. A lot of legal aid work will be done by firms which are doing a mix of work. It is quite difficult to get a sense of the degree to which people are getting richer or poorer as a result of legal aid support in England and Wales.

There are some comparisons one can make. Clearly from a market point of view, you have to think about what the supply of lawyers looks like. I think the supply of lawyers has grown considerably in England and Wales over the past 10 or 20 years in per capita terms across the population. There are more lawyers about, and they are doing increasingly different sorts of things. In countries such as Australia, where public defenders play a larger role in criminal defence cases, there is a case for making comparisons at that kind of level and asking what sort of salary you have to pay to attract somebody to become a public defender relative to what kind of income they might expect if they were doing legally aided criminal work. One of the things that makes the comparisons difficult is that, in different parts of the country, the market for legal services is going to work in a very different kind of way. In a country area, for example, the solicitor may have to have a much more varied portfolio of activity than in a city where they can afford to be more specialist and reliance is put more heavily on legal aid work.

Where you find the well-developed specialist markets, there is scope for making comparison. Only if one wanted to rely more heavily on that kind of an approach would it be important to ask what kinds of developments one would expect. The experiments that were done here with public defence did not suggest that there were significant cost savings to be made by going down that route, but those experiments were comparatively limited. From an economic point of view, one would always want to ask how many options are available in terms of finding a source of legal services. If there are plenty of options, then you can probably be confident that the price is going to be somewhat lower.

Q286 Ben Gummer: I recognise there are only a very small number of barristers and solicitors to whom this applies, but in pure market terms, what would be the effect if you provided a cap at the top end of the pay scale-if you limited income for lawyers? The Law Society has suggested a £250,000 cap, for instance. If you were to do that also for barristers, what effect would that have through the entire fee-making engine?

Professor Bowles: That is a complicated question.

Q287 Ben Gummer: That is why I asked you. I am not trying to catch you out, but you are the professor in this field.

Professor Bowles: One of the sorts of things one has to take into account is that, when legal aid decisions are being made, for example, about the use of high-cost counsel in criminal defences, there would normally be a test that said, if the Crown Prosecution Service are going to need a QC, then at some level or other you are going to have to say that the defence is entitled to one as well. It is maintaining that balance which is important, in circumstances where the Crown Prosecution Service may not themselves be thinking primarily about the cost control implications of what they are doing. There are important interactions between the provision of legal services and the human rights legislation. There are other constraints on how criminal cases are dealt with.

Ben Gummer: It does seem-and I know this is a matter of public policy-given the fact that we are questioning the salaries of chief executives of local authorities and comparing them to the salary of the Prime Minister, there is one area of publicly funded work which is conspicuous by its absence from that comparison. I know it applies to a small number, but none the less it is a factor.

Q288 Elizabeth Truss: Is it affected by the large market for legal services? The UK is a leader in the international legal services market and has some very highly paid lawyers who work in all sorts of jobs, whether it is for major corporates or the City. Does that have an effect on bidding up all of the legal work in Britain?

Professor Bowles: I would guess that it must do at some level. Certainly, if you are looking for highly specialist, very experienced lawyers, then I am sure that that does drive salary levels higher than they might otherwise be. As to what the implications of capping those expenditure levels would be, there are a comparatively small number of people involved. The question for me would be how elastic the supply in the market for legal services would be. I don’t know what the answer to that would be. I think it is an interesting question to ask, and a rather important question to ask, because it is clear that those high cost cases are consuming a significant proportion of the budget and trying to keep costs down in those cases is an important priority. The counter would be that prosecutions, especially in major fraud cases, large money laundering cases and things of that sort, are becoming very, very complex and there is a lot of evidence and you need good people to be able to sort them out.

Q289 Mr Llwyd: Can I take you back to something which you said to Sir Alan earlier on about family cases? Did you find during the study period, which I believe was 2001 to 2006-07, that there was a substantial increase in the instruction of guardians ad litem?

Professor Bowles: That is a very technical question. I do not have the answer to that at my fingertips, I am afraid.

Q290 Mr Llwyd: Could you write to the Committee with the answer, please?

Professor Bowles: Yes.

Q291 Mr Llwyd: With regard to your research in particular, can I remind you of what Lord Bach said? He described the findings as "tentative" to our previous Committee. Two issues were identified in particular. He said: "First, particularly in the federal systems such as Australia and Canada, there was sufficient variation even within single countries, at provincial level, to preclude [comparison] from being feasible within the time and space limits. Secondly, as regards"-European Union-"countries surveyed, the sources of comparative data were regarded as insufficiently robust to support much in the way of inferences." What are the key limitations of your research? Are the findings, indeed, to be interpreted as "tentative", as Lord Bach suggested to our predecessor Committee?

Professor Bowles: I would distinguish between "tentative" and "definitive". These findings are certainly not definitive because we did not go into anything like the depth of detail that one would need to do to produce clear-cut answers to these sorts of issues. I regarded this as an exploratory piece of work. It is not "tentative" in the sense of saying, "If you were writing it again, would you do it differently?" No, I would do it the same. I would say the same things.

In relation to federal systems, there are some quite substantial differences that do make it difficult to generalise. Let us say we have five pages to write about Australia. There are a lot of states there and they differ quite substantially. In those circumstances, given the sort of space and time limitations we had, we were not able to drill down into those differences. I am not tentative in saying that those differences exist; they certainly exist.

As to the robustness of the EU data, that is true. In the sort of exercise that the Commission did in producing their comparative statistics, they did get a lot of criticism from people for the sorts of assumptions that they made. If you are going to make any comparisons of case volumes, costs per case and those kinds of things, you have to make heroic assumptions and produce rather broad-brush findings. I would certainly be the first to say, yes, this is broad-brush kind of stuff. If somebody said, "We’ve got to produce a paper on the reform to the legal aid system. Could you use what is in my report as a reliable guide?", I would say, no, it is a starting point, but there is nothing in that which would lead you to do anything other than be quite nervous about taking on the kind of range of reforms that are in prospect.

Q292 Mr Llwyd: To be fair, you have said yourself that additional analysis of data collection methodology might have revealed other explanations.

Professor Bowles: Yes.

Q293 Mr Llwyd: The Ministry of Justice specified the comparator countries that you studied.

Professor Bowles: They did.

Q294 Mr Llwyd: By what criteria were they determined?

Professor Bowles: My understanding is that the two things they wanted to do were, first of all, to compare mainland Europe with some of the Commonwealth countries with some of the common law jurisdictions, because there was a worry that there was something about the continental countries which meant that legal procedure was an important component in the cost of providing public provision for legal services. I think those were the two principal criteria.

Q295 Mr Llwyd: Would you have found it more useful to do a worldwide comparison? It would have been a big piece of research, I am sure, but do you think that would have concluded that the system in England and Wales would be the most expensive?

Professor Bowles: In so far as we were concentrating primarily on middle and higher income countries, we included quite a large range of those and certainly most of the major European countries. We didn’t cover the United States, which would be a very large and messy piece of work to do because of the state level jurisdiction. The other country would be perhaps Japan, which has such a different legal system that I am not sure there would have been a great deal to be learned. I am not sure about that; I would be hesitant about that.

Q296 Mr Llwyd: Could you tell the Committee what impact the reintroduction of means testing in criminal cases has on your findings?

Professor Bowles: It is quite difficult to produce a quick and easy answer to that. I have not looked at the business case that the MoJ will have had for making that change. It is certainly the case that in other countries there is means testing in criminal cases, and in some countries it goes even further than that and you don’t get anything if you are convicted for certain sorts of offences. There is no entitlement at all, whatever your level of income. The answer would be that one would need to look to see what kinds of cases were being turned down, and what the proportion of cases would be where contributions were being sought from defendants. I could not give you a figure off the top of my head, I am afraid.

Q297 Ben Gummer: I have two very quick questions. The first is, if I may ask a personal question, how much would this cost? You have mentioned additional research to be able to come to more definitive conclusions. What would the cost of such a study be? I wouldn’t want to put a price tag on it. I will ask the second question after that.

Professor Bowles: It would depend very much on what one wanted to do. It seems to me that there are, in a sense, two issues here. What we did in this report was pretty much to document the way in which arrangements work in other countries, some of the key features of them, and demonstrating that there are some countries that do things very, very differently. There can be very big cost differences that one can attribute more or less directly to those kinds of differences.

What seems to me to be the more testing question is how you could learn from those experiences and transplant them into England and Wales. If you take something like the ceiling income entitlement and suppose you were to reduce that by two-thirds, that would be an enormous change to make. Being able to track through what the consequences of that might be is of a different order from doing a more descriptive study that looks at the way that different countries operate their legal systems at the moment. There are different things one could do. One would be to go further with the kind of study that we have done here and to look in greater detail at particular areas of law, for example, and make comparisons across those between countries.

The other kind of exercise is more like the kind of work that I thought I was going to find in the impact assessment for the consultation paper on legal aid, which is to say, "If we do this, what kind of world are we going to be looking at in three or four years’ time?" I did not find much indication of that in the impact assessment. That would be an interesting piece of work to do, but it would be somewhat different from a more thorough, encyclopaedic piece of work.

Q298 Ben Gummer: I have a quick question on the intriguing suggestion you have put here about non-voluntary pro bono work by lawyers. Without going into too much detail, did that have an appreciable impact upon the legal costs in the places where that was effected?

Professor Bowles: The context for making that remark was that, in certain parts of the US, there are, for example, law firms which do quite large amounts of pro bono work as a kind of quid pro quo. They know they are well off and it is their way of putting something back-let’s put it that way. In a sense, that is one of those areas where you could reduce legal aid spending by inducing people to supply services at zero user cost or at low user cost. But the question is: who then pays? Is it the clients of those law firms who are paying for other kinds of legal work to be done? Without being unduly cynical, it is probably not the lawyers themselves thinking, "Corporate law is such a doddle, I have a lot of spare time and I would like to put something back into the community by doing some pro bono cases."

Chair: We are running short of time.

Q299 Mr Buckland: On a point that you have mentioned, you may not be aware of the substantial pro bono work that already goes on at the Bar and with solicitors-for example, the Bar Pro Bono Unit-which can be of help to Members of Parliament with their casework. I want to draw something out of you about the timing of your research. The control period of your research ends in 2007, does it not?

Professor Bowles: Yes.

Q300 Mr Buckland: The Council of Europe figures demonstrate a nearly 23% decline in spending on legal aid in England and Wales in the period since then.

Professor Bowles: Yes.

Q301 Mr Buckland: Does that have any impact upon the conclusions that you come to as of today?

Professor Bowles: That is an interesting question, and I have asked myself that over the last few days. Not having kept up to date with this field since I did this piece of work, I am not absolutely certain. There are two things I would say. The first exercise to do would be to look more closely at the MoJ figures for how things have evolved in England and Wales. There are also things like changes in exchange rates which mean that some of the relativities would be somewhat different now. There is also the fact that there have been changes in the pattern of work that is being done under legal aid. One would need more time to reflect on what the consequences of that might be.

Q302 Mr Buckland: A final question, if I may, Sir Alan. The Council of Europe report shows that, when you look at courts, public prosecution and legal aid together, England and Wales is at the average when it comes to the percentage of GDP per capita spent on legal services.

Professor Bowles: Yes. That is an interesting observation. That is why I think more needs to be done about trying to track through what the implications of some of the proposals might be for the volumes of work that might be anticipated under the new proposals.

Q303 Chair: In the report you speculate that the cost difference on the court side may be primarily because of the use of lay magistrates here and very small numbers of professional judges.

Professor Bowles: Yes.

Q304 Chair: Do you still hold the view that that is the likely reason?

Professor Bowles: Yes. One needs to be a little careful with that argument. It is not just that the time of those people is paid for in a different kind of way. It is that, if you have a professional judge sitting in a court, then the way that the case is presented, the issues are looked at and the part that the defendant and the prosecutor play is somewhat different. There seem clearly to be possibilities for substitution here, that is to say, you could have the court do more inquisitorial work itself. The consequence of that might be that you would need less by way of representation. That really goes to the point I was making about legal aid not operating in a vacuum. It is derived demand in a market for legal services, which is itself propelled by all sorts of substantive and procedural things to do with the way that the legislation operates and the way that the courts work.

Q305 Chair: Thank you very much indeed. We are very grateful to you. There was something you promised to let us have a note about, wasn’t there?

Professor Bowles: Yes, a note on guardians ad litem.

Chair: Yes, thank you.

Examination of Witnesses

Witnesses: Sarah Albon, Director for Civil, Family and Legal Aid Policy, Ministry of Justice, and Carolyn Downs, Chief Executive, Legal Services Commission, gave evidence.

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.

Q306 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.

Q307 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.

Q308 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.

Q309 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.

Q310 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.

Q311 Elizabeth Truss: Perhaps I could put the next question to Ms Downes 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.

Q312 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.

Q313 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.

Q314 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.

Q315 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.

Q316 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.

Q317 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.

Q318 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 less than 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 with 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.

Q319 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.

Q320 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.

Q321 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.

Q322 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.

Q323 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.

Q324 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.

Q325 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.

Q326 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.

Q327 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.

Q328 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.

Q329 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.

Q330 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.

Q331 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.

Q332 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.

Q333 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.

Q334 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.

Q335 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.

Q336 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.

Q337 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.

Q338 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.

Q339 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.

Q340 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.

Q341 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.

Q342 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.

Q343 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.

Q344 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.

Q345 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.

Q346 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.

Q347 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.

Q348 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.

Q349 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.

Q350 Mr Buckland: You are not stopping them, though, are you? You are not funding them.

Sarah Albon: No; we are just stopping our funding.

Q351 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.