Select Committee on Home Affairs Minutes of Evidence


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 legal advice.

  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 alternative.

  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 contributions—or far greater where the defendant was receiving benefits—so 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 case.

  An internal audit of the way RDCOs are administered has already revealed a number of failings—for 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 had performed.

  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 DTI—separate to any departmental reports—in 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.

Professional judiciary:
Not disclosed61
Not replied/not recorded664

Magistrates (excluding those in the Duchy of Lancaster):
Not disclosed326
Not replied/not recorded2,652


  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.

September 2002

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