Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 140 - 159)



  140. That was the first appointment of its kind?
  (Lord Irvine of Lairg) That was the first appointment. We do have solicitor High Court judges who started off as circuit judges and have been promoted to the High Court bench but Mr Justice Laurence Collins, who was appointed to the Chancery Division, was the first solicitor to be appointed to the High Court bench direct from the profession, yes.

  141. Are we unique in this country in having a division between the two branches of the legal service?
  (Lord Irvine of Lairg) No. You have it up to a point in New Zealand and in Australia but the point is that it is not something which the Government as such has a policy on. It is a question for the profession to decide how it wishes to organise itself. If I can respond. In 1990, when solicitors were given, by statute, the right to acquire higher court rights of audience—and it was absolutely correct that they should do so because it was a restrictive practice to disallow them—a very, very small proportion, I cannot remember the figure but I think there were about 80 or 90,000 solicitors in the country—I will be corrected if I am wrong—probably nearer 90,000 and I think that the figure of solicitors who took up higher court rights of audience was only about 800 in all. Now, of course, I certainly do not think that advocacy skills are the sole skills which are required to be a good judge. I do not think that for a second. I just give you that fact to illustrate how comparatively rigid the divisions between the two professions are, even when bars are removed.

  Mr Winnick: I am going to ask Mr Stinchcombe if he will ask the next questions regarding the appointment of QCs.

Mr Stinchcombe

  142. Lord Irvine, the Joint Working Party suggested, as I understand it, that the earnings of individuals applying for silk should be removed from the list of relevant considerations for appointments. That was a recommendation that you rejected, is that right?
  (Lord Irvine of Lairg) Earnings are of very, very little importance. Let me put it in perspective and if there are any misperceptions about it then I will obviously make it my business to correct them. Size of income is a very, very rough guide to size of practice but it is only rough because there are certain categories of work which attract much more reward than others. I think that the Legal Aid work attracts much less reward. Pro bono work attracts no reward at all. Certain categories of work, for example in the planning sphere, if you appear for a developer who is willing to pay high fees you get a lot more money than if you appear for a local authority which is not able to do the same. All these considerations are very, very well known to me and I would be very concerned if there was any notion around that people in order to heighten their opportunities for silk have to go for maximising their income.

  143. I am obliged. These are issues that I covered with your colleague, Sir Hayden, last time. Given that, why do we, nonetheless, still continue to include the income in the list of answers that applicants have to give?
  (Lord Irvine of Lairg) I have difficulty in saying that it is irrelevant. For example, if you have got two practitioners who are practising in the same sphere of law with the same sort of portfolio of clients, which happens in many, many areas, then the income is a rough guide to size of practice but it is not something which I give any great weight to at all. You could have somebody who wants, for the best of reasons, to devote a significant amount of time to pro bono work. You could have a lawyer who for very good reasons wants to take time out from practice to do a certain amount of teaching at a university or even do what solicitors do, but barristers very rarely do, take a sabbatical for a few months abroad. I can absolutely assure you that there is no significant adherence to a pecking order based on earnings.

  144. All of which is extremely welcome and extremely helpful. To what extent are those other possibilities—that a barrister or a solicitor has chosen to work for local authorities or public authorities where their earnings are perhaps less, or chosen to offer services pro bono to an action group or chosen to take a sabbatical or to go into academia—capable of being properly reflected in the applications?
  (Lord Irvine of Lairg) I think they are. I think you have a good point here. One does not want to give a false impression you see either. I think, as you recognise, it is all about perception and there are many false perceptions around across the world, if I may say so, which have no relationship to the reality at all. You do not want to compel people to do pro bono work to heighten their chances, that would not be right either, but what you do want, you do want to know if people are doing pro bono work because that will explain why they might have a lesser profile in the higher courts for argument sake. I have a very, very open mind to improving this form in any way I can. I devote an enormous amount of personal attention and time to looking at these applications and any suggestion to me that there is anything about the form or the information that is unfair I would consider and if there are any misperceptions around it is my duty to try to dispel them.

  Mr Winnick: You may or may not be relieved, Lord Chancellor, to know that we are coming to the last series of questions on magistrates. I am going to ask Mr Singh to ask you one or two questions.

Mr Singh

  145. Thank you, Chairman. Lord Chancellor, over the summer I was fortunate enough to spend some time with the chairman and representatives of the bench in Bradford and I was very impressed with their commitment and their dedication to their job and the experience that they obviously had. They were quite openly concerned about their future as a lay magistracy and I would like to ask you whether you can allay their fears in terms of those concerns and if there are changes to be proposed, what the nature of those changes might be?
  (Lord Irvine of Lairg) First of all, let me say that there is no stronger advocate or supporter of the lay magistracy than I. I have a very, very high regard for them. It is true that there was a great amount of media speculation, I think it was at the time that you are referring to, which was suggesting that the days of the lay magistracy were numbered and that they were all going to be replaced by stipendiary magistrates. There was no truth in it, there is no truth in it, if you consider this about the lay magistracy, that they are a first class example of quality citizenship in action. They give their time for no reward, they reflect the community that they serve, there is great public confidence in them and they represent par excellence a principle of government which this Government promotes, which is the promotion of volunteering. I feel very, very strongly about this. There was a research report published recently which was jointly prepared under the aegis of the Home Office and my Department by Rod Morgan and it was called Judiciary in the Magistrates' Court. Let me quote what I said on publication and let me quote what the Home Secretary said. I said: "The report concludes that eliminating or greatly diminishing the role of lay magistrates would not be widely understood or supported. At no stage was it suggested to the researchers that in most respects the magistrates' courts do not work well or fail to command general confidence. Lay magistrates represent civic engagement in the justice system and Government has no intention of removing them." The Home Secretary said: "The unpaid work of the lay magistracy is greatly valued by the Government and we are committed to ensuring that they continue to play a significant part in the criminal justice system." So I hope the opportunity that you have given me in this question to repeat that gives it some currency in the media.

  146. I am very glad to hear that, Lord Chancellor. I think it would be a great shame if we did anything else. Magistrates provide a direct link from the community into justice, they represent that community and in a way they are as near to being judged by your peers, apart from the jury system, as I think you can get.
  (Lord Irvine of Lairg) I agree with that. In our way our country allows a quite remarkable lay involvement in the system of justice. You are quite right, the lay magistracy typify it, the jury typifies it, and I think our justice system is better for it.

  147. One of the things the lay magistracy has been very good at is reflecting local communities in terms of gender balance or ethnic balance.
  (Lord Irvine of Lairg) Yes.

  148. In terms of ethnic balance I believe they are slightly ahead of the total representation of the population and 50 per cent of the lay magistracy are women.
  (Lord Irvine of Lairg) That is correct.[4]

  149. In that sense, and we have been discussing the higher judicial appointments, they are doing extremely well. However, the basic principle of what they represent was, and still is I believe, a political balance.
  (Lord Irvine of Lairg) Yes.

  150. I understand that you believe that no longer should be the criterion on which we draw the magistrates, is that correct?
  (Lord Irvine of Lairg) Successive Royal Commissions, but they are very old, down the century, the 20th Century, have regarded political balance as a proxy for social balance. I took the view that how you vote is old-fashioned today and the notion that you come in a particular social category if you vote Labour, Conservative or vote Lib Dem is just not correct today. I had a review consider at great length whether we could find some other criterion than political balance as a proxy for social balance. I am sorry to say that they failed, they did not come up with anything, so we do continue to use political balance. It does ensure in a sense that the bench is politically representative of the neighbourhood it serves, but I would agree that it is not a sure yardstick of social balance. If anyone here can tell me what the sure defining test is, I will look at it with the very greatest of care.

  Mr Singh: It causes me some concern because I believe that the membership of the Conservative Party is quite aged now.

  Mr Malins: Speak for yourself.

Mr Singh

  151. Thank you for your answers. I can tell my local bench that it is thumbs up from you?
  (Lord Irvine of Lairg) Yes.

  Mr Singh: Thank you.

  Mr Winnick: Lord Chancellor, I said that was the last of the series of questions but I understand, however, Mr Linton and possibly one other Member would like to ask briefly about access to justice.

  Mr Malins: Nothing from me.

Mr Linton

  152. A couple of questions on the Community Legal Service. If the Community Legal Service is to have 100 per cent coverage, do you think there should be a statutory duty on local authorities to fund the law centres?
  (Lord Irvine of Lairg) We did look at it at the time that the Community Legal Service was set up. We took the view that in order to establish the Community Legal Service concept and the Community Legal Partnerships, which are essentially partnerships, as you know, between local authorities, between advice services, between lawyers, that we should proceed voluntarily. It has been such a huge success. CLS Partnerships now cover 74 per cent of the population of England and Wales, substantially ahead of my expectation at the time we embarked on the venture. Therefore, if funding problems do not emerge, if the local authorities, as they are doing up and down the country, continue to support these voluntary bodies which are working so well, then I would leave it there but, of course, nothing is excluded. This is, in fact, a very good news story, the Community Legal Service.

  153. My local authority does not fund law centres and I do not think ever will unless it is made compulsory. One of the purposes of this reform was to refocus spending on social welfare law.
  (Lord Irvine of Lairg) Yes.

  154. I do not know how that fits in with the reduction of, I think, 124 million in spending that is in your budget. How does that square with a refocusing onto social welfare law?
  (Lord Irvine of Lairg) The Legal Aid budget is broadly consistent over time, it is £1.6 billion a year or thereabouts.

  155. But I am talking about the Community Legal Service's budget which goes down from £810 million to £686 million in 2003. I am sure I am quoting the figures from your annual report.
  (Lord Irvine of Lairg) Let me tell you what I understand to be the position. This year expenditure on the Community Legal Service will be around £780 million. That is despite a base line of £623 million, so it is up on the base line. Average annual expenditure over the next three years will be £710 million. That, again, is a substantial increase over this year's base line but less than this year's annual expenditure, that is the point. The fact is that we have made savings from the fact that most personal injury cases, which represent about £50 million per annum, are now financed by the private sector and, therefore, I have got no anxiety about these funding figures at all. It is true that headline expenditure over each of the three years will be a bit less than this year's expenditure but above base line.

  156. Just to avoid confusion, I have no problem with the personal injury cases, I just thought that the idea was to refocus, in other words to shift spending away from personal injury towards social welfare law. There is a lot of very good work done by law centres certainly in my area which could do with greater funding. Is that the intention?
  (Lord Irvine of Lairg) Of course, the money is now much better targeted on priority need, on the most deserving cases, which are social welfare, mental health, housing, domestic violence. The legal help budget is going to be fixed at £236 million over the next three years, which is an increase of £35 million per annum. I am not troubled by these figures.

  157. One last point on this: in Scotland they now have Legal Aid for employment tribunals, is there any thought now that the new system is bedding in to extend Legal Aid to tribunals?
  (Lord Irvine of Lairg) Thought has obviously been given to this subject in terms of the Human Rights Act apart from anything else. I have to say that the Government has no present plans to extend Legal Aid to employment tribunals. One of the problems about employment tribunals—it depends what way you look at it, of course—is that there is a no cost rule in employment tribunals. There is a cost rule in personal injury cases. The rule is that the cost follows the event and in a personal injury case, and this is what has aided the acceptance and progress of conditional fee agreements, if you win you recover the uplift and you recover the insurance premium from the defendant who, after all, did inflict the injury on you in the first place. I think one thing that we do have to look at is whether the absence of a cost rule in the employment tribunals makes sense today when the compensation that can be recovered is so much more than it was before. The reason for not having a cost rule traditionally was that poor people would be deterred from bringing a case to an employment tribunal by the risk of being liable for the employer's costs if they lost. Whether that reasoning holds good today is something that does deserve progressive thought, I think.

Mr Winnick

  158. I wonder if I could leave you on this particular point, Lord Chancellor, with the feelings of the National Association of CABs who have a number of concerns. I think you would agree, would you not, that the CABs perform a very important service up and down the country?
  (Lord Irvine of Lairg) Absolutely, yes, 100 per cent.

  159. Of course, they were the ones who originally expressed concern over the fees for immigration and visitors' appeals, which we have already gone through.
  (Lord Irvine of Lairg) Sure.

4   Note by witness: The Lord Chancellor's Annual Report to Parliament on Judicial Appointments for 1999-2000 (Cm 4449) shows that in 1999-2000 8.6 per cent of those appointed were from ethnic minority communities which is ahead of the percentage of the population believed to come from ethnic minority communities. This continued a steady increase in the proportion of the Bench as a whole drawn from these communities so that by the end of 1999-2000 4.5 per cent of the Bench as a whole (up from 4.2 per cent in the previous year) were from ethnic minority communities. Back

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