Letter from Sir Hayden Phillips to the
Chairman of the Committee
Further to my appearance before the Committee
on 23 July, I am now in a position to provide the additional information
requested by the Committee. This is set out generally in the order
that the issues arose.
Both David Cameron and you asked whether appellants
submitting asylum appeals from abroad are entitled to publicly
funded legal advice from lawyers who would be able to travel to
meet the appellant to assess the appeal and provide face-to-face
The short answer is that it is possible, but
granted only in exceptional circumstances. There is no residency
or nationality qualification for receiving public funding from
the Community Legal Service (formerly legal aid). Funding is available
to anyone who qualifies, provided that the case is properly before
the courts of England and Wales and the case is within the scope
of the scheme. Each application for funding is treated on an individual
basis and is subject only to the statutory tests of whether the
applicant's means entitle him or her to assistance and whether
the merits of their case is sufficiently strong to make it reasonable
to provide assistance. Residence is not a relevant criterion when
considering whether to support a case.
Where a lawyer is representing a client who
is not resident in England and Wales they may not seek to claim
the cost of travelling to see their client without the prior authority
of the Legal Services Commission. The Commission would only be
likely to authorise such expenditure in exceptional circumstances
if it seemed absolutely necessary and there was no reasonable
In any event, lawyers will certainly be expected
to have held a conference with their clients before they are removed
from the UK. We are also considering proposals to have lawyers
make use of facilities such as language line (whereby an appellant
can speak to their lawyer by telephone via an interpreter) to
communicate with their clients rather than travelling abroad to
speak with them once removed.
Bridget Prentice asked me to provide the Committee
with further information about the complaint procedures of the
Children and Family Court Advisory and Support Service (CAFCASS).
As I said on 23 July, CAFCASS currently has
in place an interim complaint procedure. In May 2002, CAFCASS
issued the draft policy document "Complaints, Comments, and
Compliments" for public consultation, setting out proposals
for a new complaints procedure for the Service. I enclose a copy.
Consultation ended on 31 July and the responses are now being
analysed. CAFCASS anticipates that it will be able to implement
its new complaints procedure during this financial year.
There are very real difficulties in making any
meaningful comparisons between current performance and statistics
for complaints received by its three predecessor services in the
year prior to CAFCASS's launch. Each predecessor service had different
definitions of complaints and different systems for handling them.
CAFCASS received 476 complaints in its first
year (1 April 2001 to 31 March 2002). These statistics are based
on systems for recording complaints that were in place during
the Service's first year of operation. Further information on
the complaints received in CAFCASS's first year will be included
in CAFCASS's Annual Report and Accounts 2001-02 which will be
published after Parliament returns.
The Committee was concerned about independence
within CAFCASS's complaint process. It is important to establish
independent safeguards for those service users who believe that
they have cause for complaint against CAFCASS. The proposed complaints
procedure makes provision for the investigation of a complaint
by a designated CAFCASS staff member, independent of the CAFCASS
Region in which the complaint was made (under the current, interim
procedure, a member of staff within the same CAFCASS Region would
normally investigate the complaint). The proposed complaints procedure
also makes provision for a CAFCASS Board Member, again independent
of the Region in which the complaint was made, to review the reasonableness
of decisions taken on the complaint should the complainant remain
dissatisfied following investigation. If they remain dissatisfied
a complainant also has recourse to their MP and through him or
her to the Parliamentary Commissioner for Administration.
CAFCASS is statutorily subject to inspection.
HM Magistrates' Court Service Inspectorate guidelines for inspection
of CAFCASS, published in June 2002, include a requirement to inspect
key functions of CAFCASS, including its care of service users.
They will not look at individual complaints, but the Inspectorate
will want to look at how well the complaints procedures are working.
I would if I may like to inform the Committee
of a development that Members may have seen reported subsequent
to my appearance before it. At its meeting on 24 July, the CAFCASS
Board decided to dismiss its Chief Executive, Ms Diane Shepherd,
who had been suspended since last November. Ms Shepherd was informed
of the decision the same day, staff and the press were told the
following day. The Acting Chief Executive, Mr Jonathan Tross,
remains in post so there will be no adverse operational consequences
of this action.
Press coverage of this event included comments
attributed to a Committee member that suggested that this decision
had been scheduled purposely to occur after my appearance at the
Committee and after Parliament had risen. I would like to assure
you this was not the case. A decision to dismiss the CAFCASS Chief
Executive is a decision for the Board itself to make. The Chief
Executive is its employee. There is no direct Ministerial role
in this decision. Since CAFCASS had its own (acting) Accounting
Officer there was no direct role for me, as Principal Accounting
Officer, in this process either. The Board reached its decision
at one of its regular meetings, which had been scheduled several
months in advance. I cannot comment on the reasons for her dismissal,
as indeed I could not have done had I been asked at the Committee.
I can, however, assure you that there was no manoeuvring of the
timing of the decision, or the announcement, to make it after
my appearance at the Committee or after Parliament had risen.
Both you and Marsha Singh were concerned about
the amount of work that is put into assessing defendant's means,
compared with the number and value of orders that are eventually
made. Mr Singh also raised the issue of recovering costs from
defendants in serious cases such as drug trafficking.
I said at the hearing that the primary purpose
of replacing the old contributions system with RDCOs was to reduce
delay and to cure an ongoing problem that had caused the Department's
accounts to be qualified regularly through the 1990s. In that
respect it has been a success. Waiting for defendants to provide
information about their means often delayed the start of cases,
to the detriment of victims and witnesses. In many cases, the
cost of administering the means test was about the same as the
amount that could be obtained in contributionsor far greater
where the defendant was receiving benefitsso it was, bluntly,
a waste of money. The abolition of the means test has largely
overcome these problems. It was recognised that some defendants
in the more serious cases heard in the Crown Court could nevertheless
afford to make a contribution to the costs of their defence if
they were convicted. It was not thought right that they should
be financed from public funds without making a suitable contribution.
Whether a contribution is appropriate, and the level of the contribution
are, however, matters for judicial discretion in all the circumstances
of the case. Any order for repayment under an RDCO also ranks
behind any financial penalty imposed by the court, and you will
realise that if that penalty takes most of the available means
it would be pointless to make a further order which would be unlikely
to be met. Only around 5% of defendants were asked to make a contribution
when they were means tested because so many were in receipt of
state benefits of one kind or another. In the Crown Court just
a little over 1% of defendants have been ordered to pay some or
all of their costs.
Marsha Singh was concerned that these orders
may not be being made often enough in drugs cases. However, the
appropriateness in a particular case is not determined by the
offence for which a person is convicted, and I think it would
be dangerous to try to require the court, almost routinely, to
impose an order in certain classes of offence. We have to allow
the court freedom to examine all the circumstances and reach a
reasoned view of whether an RDCO is appropriate in a particular
An internal audit of the way RDCOs are administered
has already revealed a number of failingsfor instance,
means information not being passed from Magistrates' courts to
the Crown Court; reports to judges not being properly completed;
and proper records not being kept. We have taken steps to address
these. I am confident that court staff are handling these administrative
tasks much better now than when the system was introduced. As
I mentioned to the Committee, and now in the light of the Lord
Chancellor's Department's SR2002 settlement, we are also reviewing
the underlying policy. I am sure you will understand that I can
give no undertakings now about what changes there might be. But
I can assure the Committee that every aspect is being looked into,
including the role of the judiciary and the amount of discretion
the legislation ought to allow.
I cannot provide the Committee with an immediate
estimate of the cost of administering RDCOs. This work forms part
of duties of court staff and it will take time to separate out
the costs attributable to RDCOs. We intend to carry out an exercise
to identify the costs actually incurred by this system, and the
costs that should be incurred when it is operated properly, which
will enable us to establish value for money. That will form part
of the review of underlying policy that I have already mentioned.
I should add that value for money is not the only criterion for
evaluating RDCOs and that I will let the Committee have further
information as soon as I can.
For the future we will be able to use the reform
announced in last month's White Paper, Justice for All,
that all defendants will have to give information about their
means before appearing in court. This will improve the way fines
are calculated and enforced, but plainly the information will
be available to the courts for calculating RDCOs, and that may
greatly affect the notional cost of administering them. We will
work closely with the Home Office to ensure that the two systems
are linked as efficiently as possible.
The Committee will, of course, be aware that
prosecution will not be the only way of taking action against
serious criminals in future. The Proceeds of Crime Act, which
received Royal Assent on 25 July, will enable the Government to
take civil action against people whose assets are the result of
a criminal lifestyle. In many cases civil recovery action may
be more effective than a prosecution, since the courts will be
able to order the confiscation of all assets obtained through
criminal activity, rather than being limited to the penalties
appropriate to the particular offence charged. And, as with all
civil cases, the new Asset Recovery Agency will be able to recover
its costs where it is successful.
I cannot identify any individual case in which
the imposition of severe penalties has led the court to decide
that an RDCO is inappropriate. At the moment the data on RDCOs
is not linked with other data on sentencing in a way that would
allow us to do that. It may be possible to create a suitable link,
and we will consider it as part of the review, but we will need
to avoid placing unhelpful extra burdens on the courts. We will
also need to be very careful to avoid any impression that, in
seeking reasons for not making RDCOs, we might be questioning
the courts' decisions.
I also agreed in response to questioning from
David Winnick to provide the Committee with further advice on
the supervision of immigration advisers by solicitors, a matter
about which the Commissioner has also expressed concern.
I should say at the outset that both the Lord
Chancellor and the Law Society consider the sort of instances
to which the Commissioner refers, whereby unscrupulous advisors
seek to avoid regulation by the Commissioner by virtue of supervision
by a solicitor, as grossly improper. In cases where there is evidence
that solicitors are party to such an arrangements the Law Society
has confirmed that it will refer the matter to the Solicitors
Disciplinary Tribunal. In cases where a solicitor may be an unwitting
party (ie where their name has been used by an adviser without
knowledge or consent), then clearly that is a matter for the police.
The Law Society has recently published an article
in the Law Society Gazette alerting its members to the issue raised
by the Commissioner and expressing its own view that any such
behaviour by solicitors would be regarded as grossly improper
and dealt with as a disciplinary matter. But it would be wrong
to give the impression that they represent any widespread behaviour
within the solicitors' profession.
As far as the existing arrangements are concerned,
the Lord Chancellor does have powers to "call in" and
alter rules of professional bodies by order. But that power extends
only to rules which relate to the grant or exercise of a right
of audience in the courts or a right to conduct litigation. While
there is a power in the Immigration and Asylum Act to "de-designate"
a body, such as the Law Society, that power would need to be exercised
by the Home Secretary with the concurrence of the Lord Chancellor.
However, this would be a significant step and given the limited
nature of the instances concerned I believe the most appropriate
way forward is for the Law Society and the Commissioner to continue
to work together, encouraged and supported in this by the Government.
Indeed the Commissioner has made no suggestion that the "de-designation"
power should be used. In the longer term, it is possible that
a revision to the Immigration and Asylum Act could result in a
tighter statutory framework covering more fully the supervision
of advisers. The Home Office are in the lead in considering the
statutory framework but we shall of course be working closely
in considering this issue.
Mr Cameron was concerned that the prompt payment
of invoices should continue to be targeted and to know how LCD
The prompt payment of invoices is monitored
within departments and reported annually as part of a pan-Government
exercise led by the Department of Trade and Industry (DTI) through
its Small Business Service. Departments and their agencies are
required to pay invoices within 30 days or the agreed contractual
terms. There has for some time been a Government target for prompt
payment. Departments were set targets of paying 95% of invoices
on time in 1996-97 rising to 97.5% in 1998-99 and 100% in 1999-2000.
In the past DTI has recognised that in view
of the huge volumes of invoices paid by large departments achievement
of the 100% target is questionable. What is expected however,
is that performance continues to improve.
Until the Department had introduced new accounting
systems (which it did in 2000-01) we, along with other departments
in a similar position, calculated the target from a random sample
of one, 200 invoices paid per year. From 2000-01 we have calculated
performance against all invoices paid.
Our performance measured against the sample
from 1996-97 was:
When we changed to measuring all invoices paid in 2000-01
our level of performance fell to 94.7%. The Government average
across the entire survey for that year was 96.8%. Our performance
for 2001-02 improved to 95.1%.
The results are published by the DTIseparate to any
departmental reportsin a league table format by way of
a written Parliamentary Question. The results for 2001-02 were
announced in this way on 18 July (Hansard Column 442W).
I am anxious that my Department should continue to monitor
performance on a regular basis and to identify means to improve
payment performance. One initiative we are pursing is the introduction
of the Government Procurement Card (GPC) which is currently being
implemented in the Department. This works very like a credit card
and will ensure that suppliers are paid more quickly. It is envisaged
that the card will be in general use across the Department by
the end of 2002. The department's automated purchase order system
is also being used to speed up the processing of a wider range
of invoices and payments. I do expect to see therefore a further
improvement in performance.
In response to your questions about the numbers of magistrates
who are freemasons and those in the professional judiciary more
widely, I undertook to provide numbers on the masonic status of
those newly appointed as magistrates and members of the professional
judiciary since the implementation of the policy. To summarise,
the policy in respect of the magistracy is that applicants must
declare on their application forms whether they are masons. Should
an applicant refuse (since the system was introduced, none has)
no further action would be taken on the application. For the professional
judiciary, the declaration is required at the time of the offer
of an initial part-time or full-time appointment.
I am afraid that I cannot provide the information in the
form you seek. The computer systems for recording appointments
are not configured to produce the information. I can however let
you have the latest provisional figures, which show for the serving
judiciary the information we have. These figures are subject to
revision in the light of further analysis.
|Not replied/not recorded||664
Magistrates (excluding those in the Duchy of Lancaster):
|Not replied/not recorded||2,652
Finally, I have, since the hearing, written to notify you
of the position on Libra, and I have undertaken to provide you
a note on the lessons we have learned from our experiences with
Libra and how we will deal with future contracts, once we have
reflected on these. I would also like to add one point of clarification.
In answer to a question from Bridget Prentice on whether penalty
clauses were included in the Libra contract, Ian Magee answered
in the affirmative. Technically, the contract provided remedies
in the event of a breach of contract. A similar question was asked
at my recent appearance before the Public Accounts Committee.
As part of a confidential note that I provided for that Committee
I described the penalties and termination provisions in the contract.
For the avoidance of doubt, I attach a copy of that description.
The attachment includes commercially sensitive information and
I would be grateful if the Committee would observe that confidentiality.