Examination of Witnesses (Question Numbers 1-74)|
19 October 2010
Examination of Witnesses
Witnesses: Mr Jonathan Djanogly, Parliamentary Under-Secretary of State, Ministry of Justice, and Mr Shaun McNally CBE, Operations and Performance Director, gave evidence.
Chair: Welcome, Minister, for the first time in front of us. Welcome, Mr McNally. There are a couple of formal things that I have to do to start with. The first is to say that following consultation with Mr Speaker Iáhave decided to waive the sub judice rules, which Iáhave authority to do, in order to allow general discussion of the legal aid contract situation, touching as it does upon the delivery of a public service, which is the basic reason which enables me to waive the subájudice rule in this case. The second is that we have to declare interests, which is a little complicated on this occasion. I will just work around the table, starting with Yasmin Qureshi.
Yasmin Qureshi: As a former barrister, Iáhave received legal aid payment in various cases and I still have some receipts to receive for work I did prior to coming into Parliament.
Anna Soubry: I am very much in the same position. I worked as a criminal barrister until May. I hope to continue to be able to do some work and therefore have been in receipt of legal aid fees for criminal work.
Mr Buckland: I am in a similar position as a criminal barrister practising until May. I am still awaiting receipt of some payments for cases done prior to the election.
Mr Llwyd: As a solicitor and barrister, Iáhave received legal aid payments in respect of family work and criminal work in the past and one or two fees are still coming in.
Chair: We will take this side of the table. MráTurner?
Karl Turner: Yes. I am in a similar position. I have received payments in criminal and family cases as a criminal barrister and solicitor.
Chair: The rest of us have no interests to declare and you may find that we are asking some of the questions in that area, but I am going to turn, first, actually to court closures and to Mr Llywd.
Q1 Mr Llwyd: Good morning, Minister. How many responses did you receive in respect of the consultation on court closure?
Mr McNally: How many? We have received a considerable number of responses. They range from area to area based on 100 minimum, 500 maximum. We are still collating details in relation to the overall response rate because some of the responses went to local areas and some of them came in nationally, but we have had a significant response.
Mr Djanogly: The reason why I asked Mr McNally to answer that question, by the way, is because ministers have not yet been told how many responses have come in because the assessment is still ongoing. Just to explain to the Committee what is happening, this assessment is being made by officials. That will then go to the HMCS Board for review and then the recommendations will be put to the Lord Chancellor, and we expect a decision to be taken some time before Christmas.
Q2 Mr Llwyd: As I understand it, some of the criteria which you will employ are the utilisation of the courts, maintenance costs and distance between courts. In a written answer recently you said: “Utilisation rates currently average 64% across the magistrates’ courts. If the proposed closures went ahead and workload was transferred to surrounding courts it is estimated that it would result in a national utilisation rate in the magistrates’ courts of around 80%.” Do you stand by that figure?
Mr Djanogly: That is the target, yes, in magistrates’ courts.
Q3 Mr Llwyd: Why then is Harrow magistrates’ court set for closure with a 97% utilisation?
Mr Djanogly: Because utilisation is only one of the many criteria that we have in relation to looking at the system. I think it may be helpful, Sir Alan, if I just explain the rationale for the consultation. What we are not doing is looking at individual courts. We are looking at the court system. This is an important point because, when the proposals were first looked at, and I was a very new minister at that stage, we had to look at the basis on which the consultation was going to be conducted. We looked at what the last Government did, which was very much ad hoc. Twenty courts were closed under the last Administration but they were done on a rolling basis, on an ad hoc basis. I took the initial and early decision that that was not the way we wanted to proceed. We wanted to look at the situation on an areabyarea basis, and there are 16 national areas; so it is wide. But we also wanted not only for the areas to be looked at per se but then that areas could compare themselves against other areas, so that if people wanted to say, “Well, we are being hard done by compared to another area of the country”, they could say that if they so wished.
The consultation responses have actually been very varied. Some people have concentrated on their local court; some people have put it on a regional court area basis; and some people have been looking at it on a national basis. So we hoped in that way—and I think it is happening—to get a very wideranging consultation as a result.
Q4 Mr Llwyd: The Magistrates’ Association have some concerns about the accuracy of the data that you have based your proposals upon. In fact, they say that some maintenance figures were purely notional and others discredited. Do you accept that there have been mistakes in the figures that you have produced?
Mr Djanogly: There have been variations in figures. There have been some mistakes, and I apologise on behalf of the Department in relation to those, but Iáhave to say very few, and in every case we looked at them carefully and came to the decision that they were not important enough to affect the consultation.
In relation to one area—one that you will be aware of, Wales—the overall savings figures were accurate. However, the transposition of the figures was done inaccurately. In other words, the wrong numbers were put against the wrong courts. This was found out very early in the consultation stage. We took the view that that did not affect the overall consultation on the basis that we would advise those people—the stakeholders. I actually went further and said that I wanted the documents to be reissued with the new numbers put in. Those went out immediately and I think that has generally been accepted by those who have received the figures, but the overall savings there were accurate.
Can I also say one other thing, actually? A lot of complaints—you mentioned maintenance figures. There has been a variation in views on maintenance figures. Very often that is because people have been coming to us with updated maintenance figures based on a recent assessment. We had to take a date from which maintenance figures were going to be taken. That was July of last year, am I correct?
Mr McNally: Yes.
Mr Djanogly: That was July of last year. So some people have come to us and said, “Well, actually, we have just reviewed these figures and they are inaccurate.” Because we are doing this on a national basis we had to have a date. So when you say, “Are there inaccuracies there?”, there may be inaccuracies from what the situation was last July, but in cases where we have checked it out the July figures are normally correct.
Q5 Chair: Can I just clarify? Does that mean that, if courts have been able to demonstrate that it no longer costs as much to maintain them as it used to do, you would ignore that?
Mr Djanogly: No, we wouldn’t ignore it. That is a valid consultation response and will be taken into account in the assessment. What I forgot to say earlier of course is that an Impact Assessment will be produced to go with the officials’ recommendations, both to the HMCS Board and then to the Lord Chancellor.
Q6 Chair: Could you just clarify something else for me, which is those cases where the savings appear to be exaggerated because cost savings figures appear to be wrong? Mr McNally will know, for example, where Alnwick magistrates’ court is. We’ve had a number of cases where courts just sit on top of police stations and there is no prospect of alternative use of the premises; so the public sector is going to carry on maintaining them. There are already police stations like that in my own constituency and other places where there is an empty courthouse sitting up above. That leads me to ask, first of all, whether you are taking account of that, and, secondly, whether that means that the bench of magistrates could in fact, if it decided that there were good grounds to do so, hold some hearings in courts which still exist and are sitting there on top of police stations.
Mr Djanogly: The answer is, yes. Technically, those courts, if they are still within the HMCS estate could, in the future, be used for hearings. I think the wider question, though, goes to whether we should be using noncourt buildings. Some people have been suggesting that we should use town halls, for instance, increasingly for court use. There are certain situations, particularly, for instance, in family hearings, where there may be possibilities.
Iáhave to say, overall, the Department is wary of moving in that direction because, generally speaking, the costs of doing that are very high. The security implications are often very varied. Many magistrates are—how should I say?—middleaged or older, a lot of them are women and have security concerns.
Q7 Chair: Inside the police station?
Mr Djanogly: Not inside a police station, perhaps, Sir Alan, but in a town hall possibly. I am just saying that this is an area that we don’t have a fixed view on in every case. There may be circumstances where it is appropriate, but there are concerns as well. That is the point I wanted to make.
Q8 Mr Llwyd: What is your current estimate of the potential savings from the court closure programme?
Mr Djanogly: We consider that revenue savings will be in the region of ú15 million. Of course this is assuming that all the courts close; this is subject to consultation. The savings are maintenance. They are not technically a saving, but if the courts were to stay open there would be an additional cost of some, I think, ú21 million.
Q9 Mr Llwyd: Can I just pose this question? If, for example, court A is closed and it means that court B is the main court centre, solicitors have to travel there; probation officers have to travel to the court; in youth cases, social workers; people are looking after the victims; the police and so on. Is all of that factored in?
Mr Djanogly: It is. Generally speaking, the situations that you have given are reasons why it is better to use larger and multicourt facilities, because you get economies of scale on all of the bases that you have just mentioned.
Q10 Mr Llwyd: With respect, that is not the case at all, is it, because if, for example, probation officer A or lawyer A travels 10 miles to the local court and finds himself or herself travelling 80 or 90 miles, that is not an economy of scale in my mind?
Mr Djanogly: Well, it depends. Many lawyers work on the premise that they themselves get economies of scale by having multiple cases on the same day. So they would prefer not to go to a court just for a single hearing. They would normally prefer to go to a larger court with lots of courtrooms where they can do multiple jobs in a day and therefore only do one trip. To that extent, modern, wellequipped, large courts can often, overall, provide much greater savings than going to a small, poorlyequipped court that only sits one day a week, say.
Q11 Claire Perry: May I pick up on where I think some of the questioning was going. I represent a very rural constituency in central Wiltshire and I am very concerned about the travel time. I know that you mentioned, I believe in one of the Impact Assessments, that travel time was not the only factor that was taken into consideration.
Mr Djanogly: Absolutely.
Q12 Claire Perry: But I would like to ask specifically what percent of people currently live within 60 minutes’ travelling time of a court and what will that percentage be once the planned closures go ahead?
Mr Djanogly: We consider that between 75% and 85% of people currently live within an hour of a court, and that if all of our—
Q13 Chair: Is that an hour by public transport?
Mr Djanogly: Yes, correct, Chairman. If our proposals were implemented in full, then that would fall by about 10%.
Q14Claire Perry: So 65% to 75%?
Mr Djanogly: I think 75% to 80%. However, I would just like to say in relation to access to justice and proximity to the court that, for the most part, this is not like, say, a post office closing. Most people do not go to court very frequently. On top of that, in rural areas many people already have provision relating to the lack of access they have to other things. For instance, a lot more people drive, on the whole, than in cities. On top of that, our recent research has shown that, of the people who do go to court, I think it is only 20% use public transport.
The other point I would make is that we are assuming that in the courts where they would have to go to consideration will not be given for their travel. That is actually not the case. The clerks who do the listing and indeed the CPS will normally put themselves out to be helpful to people if they say that they are going to have trouble getting to a court because of travel problems.
Travel is an issue, Chairman. It is an issue, but I am afraid it was quite a long time ago that we moved away from the Victorian idea that there would be a court in every town. In looking to have a good court service, there are different things that you have to weigh up when it comes to access to justice. Access to justice isn’t just proximity; that is one issue.
How I would put it is this: if a person was charged and they were guaranteed a hearing within, say, an hour on average public transport from their home the next day, in a modern court with good facilities which is fit for purpose and they get a speedy and efficient trial, I would say that that is arguably better than being charged, having to wait a week for their hearing or longer in a court that sits once a week or less, with poor facilities and a poor listing system because there is only one court, say. These things have to be weighed up and that is the purpose of the Impact Assessment and the officials’ recommendations and what we will be looking at very carefully when the Lord Chancellor makes his decision.
Q15 Claire Perry: Thank you. I have just one final question on that. You make a persuasive case for the accessibility for the person charged. Have you thought about the impact on witnesses, who in many cases will be faced with travelling quite substantially more distance to attend and do their job in providing evidence?
Mr Djanogly: Yes. Generally speaking, with witnesses the same issues apply. However, with witnesses, often the priority is to get them into court quickly. Witnesses often move away; they are busy people; they forget. Generally speaking, the thing with witnesses is to get them into court as fast as possible.
You are assuming, of course, that the witness lives next to the court. They are just as likely to live next to the larger court, say, an hour away as they are to live next to the small court in the countryside. In fact they are probably more likely to live next to the larger court; so I don’t think it is the same issue for witnesses.
I think that at some point—and I think we should look at this sooner rather than later—we are going to have to catch up. That means, particularly, more use of telephone and more use of video conferencing. Iáhave seen pilot video conferencing; Iáhave seen where video conferencing is being used; and Iáhave been very impressed.
Witnesses shouldn’t have to travel around the country. They should be able to go to their local police station or a local court and be able to go and give evidence—
Q16Claire Perry: By link?
Mr Djanogly: By link. I visited the pilot magistrates’ courts in South London. I do not know if you have done that, Chairman, but it is well worth a visit. So far it is only guilty pleas, but it is summary justice, I would say, in the most efficient and local sense that Iáhave ever seen: “local” because the defendants are being tried in a courtroom, in a police station next to where they live, and “summary” because it is quick. I really do think we can talk more about this because I think it is a very important issue and one that we are going to have to look at in much more detail as time goes on.
Q17 Chair: I imagine, as you develop proposals of that kind, we would want to look at them. But the issue does rather interlock with this one because only a few moments ago we were talking about existing courtrooms in police stations in the very premises you might want to use if you developed a scheme of that kind. I wanted to turn to Yasmin Qureshi because Iáhave got a list of people who wanted to come in on this.
Yasmin Qureshi: I think Anna had put up her hand first.
Q18Anna Soubry: I just wanted to say that, apart from expressing my real concern about the growth in video evidencing, you cannot beat a person giving their evidence in the flesh, so that you can assess them face on as to whether they are telling the truth or not. But, in any event, I just want to drill down on costs because I am concerned about the mechanism in establishing what the real savings are. Just further to what has already been said, when you are looking at the costings, will you please make sure that you take into consideration things like at Worksop magistrates’ court—and no doubt in other similar situations—where the presence of the police station next door to the court means that officers can continue doing their duties on standby? If they are needed to give evidence, they can literally be called on their airwave radio and within minutes can attend? If Worksop, for example, is closed, they will have to go to Mansfield. They will not be able to continue in their duties as police officers: they will have to be in Mansfield on standby. That is not an efficient way to use their time and that will cost us, as the public, money. Please will you make sure you factor in all these things when looking at what the real cost of savings is?
Mr Djanogly: I agree. I think you are right. I would, however, say that it is as much a listing challenge as a closure challenge to get the listing right in the larger courts, which should have more scope, but it has got to be done efficiently.
I would, if I may, Chairman, just like to use that opportunity, though, to say that there is a cloud overhanging Justice as other Departments of State and we are not going to know how it quite breaks until tomorrow, but I think—
Q19 Chair: I suspect you have got a pretty good idea?
Mr Djanogly: I may do, Mr Chairman, but I am afraid I am not allowed to say anything until tomorrow, as you will appreciate. But I would just like to say that, as with all nonringfenced Departments, we were asked to present the Treasury with savings based on 25% and 40% savings. With a budget of ú9.5 billion, we are talking about over ú2 billion of savings at the lower end, at 25%. To put that in context, that represents half what was spent on prisons and probation, entirely what we spent on legal aid and double what is spent on courts. That just gives you some perspective—
Q20 Chair: Can you just clarify—are you talking about annual figures?
Mr Djanogly: Annual figures. No, I am certainly not saying that what is going to happen tomorrow is that we are going to have to cancel legal aid, no. I am just trying to give a perspective at the lower end of what we were asked to provide to the Treasury—what that actually means in terms of giving people an idea of the scope within the Department. That is going to present some very challenging situations for us.
When we look at the courts and other aspects of the Department, this is very much at the forefront of our mind. We are at a time when we really have to make the very best use of all the facilities that we have and there is no getting away from that. If courts are being very lowly utilised or we can get backoffice savings through closures or by using multicourts, then these are the things that I am unashamedly saying that we are going to have to look at.
Q21Karl Turner: Minister, you have spoken a fair bit about access to justice. What about access to legal representation? I wonder what assessment you have made in relation to solicitors having to travel to represent clients. In my experience, solicitors are on a very tight, fixed fee. Are solicitors actually going to travel to represent clients if they are already on a very tight fee?
Mr Djanogly: As I said, most solicitors will look to maximise the number of cases in a particular location so that they reduce the amount of travel. The best opportunity for that is in a larger multicourt. Having said that, there are other aspects to this. One of them is the question as to whether telephone advice should be maximised. The feedback that we are getting from solicitors who do use telephone advice is that in most circumstances it is working very well. There are areas in which we should want to improve the system but it is certainly here to stay.
Q22Karl Turner: I don’t mean to be rude and interject on you, Minister, but it seems absolute nonsense to me if you are suggesting to this Committee that defendants are going to receive telephone advice and then waltz into a magistrates’ court very often in situations where they may then receive six months’ imprisonment or, in fact, more than six months’ imprisonment in some cases, given the legislation.
Mr Djanogly: Can I just say on that that the way things work at the moment is that it would ultimately be for the adviser to decide whether it was appropriate in the circumstances that he did go and see his client. But can I also say that access to justice has got many, many facets and we have discussed some of them. Proximity—
Q23 Chair: We will discuss some more in a moment.
Mr Djanogly: Okay. Then I won’t—
Q24 Karl Turner: I wonder whether you could just clarify that. Are you suggesting then that the defendant would be given an opportunity to speak to a solicitor over the phone?
Mr Djanogly: That is the current situation.
Q25 Karl Turner: That is the situation at a police station.
Mr Djanogly: Correct.
Q26 Karl Turner: Not at courtrooms.
Mr Djanogly: At a police station.
Q27 Karl Turner: Yes.
Mr Djanogly: Yes.
Q28 Karl Turner: We are talking about a courtroom.
Mr Djanogly: Right.
Q29 Karl Turner: So the solicitor would speak to his client over the telephone and then make the decision as to whether he or she would then travel to the magistrates’ court to represent that defendant, whether the solicitor thinks it is necessary or not. Is that what you are saying to me?
Mr Djanogly: What I am saying is that, if he was to receive advice at court, then the interest of justice test comes into play and means testing of course comes into play. These were changes made by the last Labour Government.
Q30 Chair: Is Mr Turner’s point not significant in another way as well, which is that solicitors have tended to cluster in towns where there are courts?
Mr Djanogly: Absolutely.
Q31 Chair: And, as courts close, the viability of criminal law practice being available within that community disappears because those solicitors looking to do criminal business will locate in the court centres and those firms which are not in court centres will retreat into private law and civil law work?
Mr Djanogly: The clustering that you refer to, Chairman, exists already. The question is, will proposals that we have in our Legal Aid Green Paper increase the likelihood of that? I am afraid, for that, you will have to wait until the Green Paper—
Q32 Chair: I think in a moment I want to turn to it.
Mr Djanogly: But it is an issue we are looking at.
Q33 Mr Llwyd: We have dealt with the generality. Can I put a specific point to you? The Lord Chancellor gave evidence to this Committee a few weeks ago and when I appraised him of the proposals that were being proposed in my constituency he said that it may very well be a special case. I hope somebody is listening. I will just say this and I will keep it brief. I will just say this. Iáhave the privilege of representing an area which is 100 miles northsouth and about 100 miles eastwest, currently served by just two magistrates’ courts. The intention is that it is going to be served by one and I think that is absolutely ridiculous in terms of access to justice. To expect anyone from the far end of the Llŷn Peninsula to travel in any way, if there is public transport available, by 10.00 am or 10.30 am to Caernarfon, I am afraid it is not possible. More to the point, even if it were, I say that witnesses might well be travelling on that same bus. So access to justice—what kind of justice? Really, I do ask the Minister, please, to look at that case carefully.
Mr Djanogly: That is a good plug for your local court and the message has been received, but I would have to say it was received through the Westminster Hall debate that was initiated on the same subject and, indeed, through the representations you have made in writing and some of your other colleagues orally. So the point has been received, I can assure you.
Q34 Chair: The same goes for the points Iáhave made as well.
Mr Djanogly: Of course, indeed, Chairman, and other members of the Committee. But I would say, seriously, on the consultation aspect that we—not “we”—I received, I think it was, 25 or 27 delegations of MPs. We had three Adjournment debates on the issue and we have received, I think Mr McNally said, between 100 and 500 representations on most of the courts. So the consultation has, I think, been a thorough one and well responded to. So we do have a lot of good material to assess and it will be assessed.
Q35 Chair: I think it shows how seriously this is taken in the community.
Mr Djanogly: Indeed.
Chair: I want to turn to legal aid.
Q36Mrs James: Minister, I am particularly concerned because I don’t represent a rural community; I represent a typical inner-city community. None of the tenders that have been awarded have actually been awarded to a company in my constituency. One would think in a city like Swansea it would be quite easy to get from one end to the other of it, but I am actually looking at three bus rides. As the crow flies it is very, very few miles, but the practicalities of getting from St Thomas, let’s say, in Swansea East, to Gorseinon, which is in the Gower Constituency, might well put off people from seeking redress and from seeking advice, etc. We recently heard that there are going to be reforms and that the LSC is one of those organisations that is going to be taken back inhouse, so to speak. What plans have you provided for taking it back in-house and how successful do you think that could be?
Mr Djanogly: There is quite a lot in that and so, if I may, Mr Chairman, I will just try and go through it. The first one was relating, I think, to the recent let of the family legal aid contracts.
Q37 Chair: We went on to that and you had actually first dealt with your plans for the LSC, and then we will take the first half of the question.
Mr Djanogly: Okay. Before the last general election, there was consensus amongst the three main parties that the LSC should become an agency—be brought back inhouse. That was announced last week as part of the Public Bodies Bill. The LSC is to be abolished and made an agency of the Department for Justice. The way we are going to go or the next step in the process will be that this will form part of the Legal Aid Green Paper which is due out this autumn—i.e. quite imminently—and there will be a section on how we are proposing to orchestrate the process of moving the LSC into the Department for Justice. The LSC is already starting to look at the plans for that to happen. Shall I now move on to legal aid contracts?
Q38Mrs James: I just want to come back on to that one. But you are satisfied that’s going to be as seamless as possible and it is not going to affect people’s access to advice—the telephone advice, for example, that the organisation was providing?
Mr Djanogly: Yes. The plans for transferring the organisation into the Department will, I can assure you, be looked at very carefully for a seamless delivery of service. That will be our absolute objective. Iáhave to say that this does require primary legislation. So it would be arrogant for me to say it is just going to happen. The legislation would be expected obviously after we get the report back from the Green Paper, which will be not until early next year. So it is not going to happen instantaneously. There will be a good period which will provide time for the transition arrangements to be put in place.
Okay, so on civil legal aid contracts, these were due to commence on the 14th of this month. On 30áSeptember the LSC lost a judicial review brought by the Law Society against the recent family tender process. The family tender process was ruled unlawful and the awards of those contracts, which you have just mentioned, were actually quashed. That means that the LSC is unable to proceed with the new family contracts unless a fresh process is undertaken. Iáhave just heard that on Friday—although the decision came out a few weeks ago, we hadn’t had a formal written judgment. That only came out on Friday. The LSC have two weeks to decide whether to appeal that judgment. So I can’t actually tell you whether they are going to or not. That is a decision that they will have to take. It is not a departmental position. From the Department’s point of view, from my point of view as a Minister, looking at all of this, as things stand, we have a say on the policy but we don’t have a say on the operation of legal aid as things stand. That will change once it comes into the Ministry. So what we are looking at is that these contracts were first planned in 2006 by the last Administration. So the policy behind them was the last Government’s and the actual operation of the letting of them was the LSC.
Q39 Chair: Wouldn’t it be a lot easier and save a lot of time if the LSC just got on with the job of doing the whole process again rather than—
Mr Djanogly: The problem there—that is something we have considered. Could I just quickly finish by saying this? The outcome of all of this, as far as I am concerned, is not one that—I can only look at what has happened, learn from it and try and make sure that we don’t do the same mistakes again on future contracts relets. So that’s where we are coming from. To move on to your question, Chairman, which is a relevant one to move on to, the problem is that what we do with legal aid is going to be subject to consultation in our Green Paper. I don’t think I will be letting out too many secrets, seeing what has been in the press recently, to say that we are going to make some radical suggestions. Those will be consulted on and that means that the format of certain legal aid services changes. We don’t know how that may be yet—I can’t speculate—but that may be the case. If we were to relet contracts on the basis of existing provision and then put out a Green Paper on how we are going to change that provision and in effect run a bidding process against what the new Government is proposing, it just would, I think, look like a mockery.
Q40 Chair: If I am to understand this, that means it would neither be a good idea for the LSC to forget about the appeal and just get on with rerunning the process—
Mr Djanogly: Yes.
Q41 Chair: Nor for the appeal to take place and at some time at the end of the appeals process to begin doing it, because you would be even further into your consultation of the future of legal aid there.
Mr Djanogly: I am putting some things before others here. As I said before, the first decision is one for the LSC and that is whether it wants to appeal the decision of the court. If it does and if it were to win, then your first question would be the relevant one again.
Q42Mrs James: What confidence can solicitors and organisations have that this process is going to be efficient, because, given the complaints that I had about the tendering process changing, about dates changing, about sufficient information and the consultation progress, you can understand why there is a lot of scepticism there—
Mr Djanogly: Indeed.
Q43Mrs James: And why we were a little sceptical. So it is getting that process right. Are we confident that there are going to be savings at the end of the day?
Mr Djanogly: I think you can be confident that savings will be proposed in the Green Paper on legal aid. They will be consulted on. On your wider question as to practitioners —barristers as well as solicitors of course—if I was a legal aid practitioner, I would be very concerned at the way the service had been provided over recent years. That is not to say, by the way, that the last Government ignored legal aid. They didn’t. They actually had over 30 consultations on legal aid in a fiveyear period. What they did, though, was firstly they siloed the issue of legal aid. They didn’t look at legal aid in the context of, or enough in the context of other areas—access to justice areas, or like court reform, or like the cost proposals coming out of the Jackson review. So they siloed. The second thing is that they often ignored what these consultations said and cherrypicked from them. So what you would generally get from practitioners is that they feel that it ended up as a process of salamislicing budgets, rather than a strategic review of where anyone is heading in relation to an efficient legal aid service. And Iáhave to say that that is the starting point as far as I am concerned. How can we move away from the salami-slicing, which is why we didn’t have another external review? We are looking at all of those 30 reviews again. We are consulting; we have been talking to people; and we will come up with a set of proposals which I can assure you will be comprehensive.
Q44 Chair: Can I just clarify, because I still don’t think we have sorted this out, how that should impact on the present process? Is the logical conclusion of what you have said already that we should forget about putting in place a new system in the meantime, whether it is done now or at the end of the appeals process, and just let existing contracts run on until these major decisions have been taken about the future of legal aid, because if it is not that I don’t understand what it is?
Mr Djanogly: As I said before, the starting point is to see whether the appeal goes ahead or not. Assuming it doesn’t then the situation would be that the existing contracts run unamended. However, the situation is complicated by the fact that many legal aid practitioners decided voluntarily to drop out of providing legal aid. I think we are talking in the region of 400 which comes to mind. It is a large number. So, even if the contracts just run on, there will have to be a certain degree of reorganisation. It is not for the Justice Department in the current context to say how that would work. It is for the LSC who runs legal aid operationally to come up with proposals. They would consult with us.
Q45 Chair: Just to complete that picture, if the appeal were to be successful, by that time, given also the possibility of a counter-appeal, by that time, you are even closer to the Government coming out with new proposals and therefore it wouldn’t be logical to open up the new system currently proposed at that point, would it?
Mr Djanogly: The last Government came to a deal with the Law Society, which was that in civil and legal aid there would not be reletting until 2013. As things stand, that is what we are proposing to hold to. If things totally change because of court decisions and everything, then we will have to look at circumstances as exist; but, as things stand, you would not see an immediate move towards civil contracting for the reasons that you gave.
Chair: Iáhave to get that clear.
Q46Claire Perry: Can I focus on my favourite subject, Minister, which is costs and underlying cost drivers. My understanding from previous submissions is that the Department felt that they didn’t have a good handle on the costs that were driving the enormous increase in the legal aid budget. Do you feel now that you understand those and can pull the appropriate levers to drive the costs down?
Mr Djanogly: I think the individual who understands all the cost drivers in legal aid after four months would be a pretty smart person.
Q47Claire Perry: So the answer is, no?
Mr Djanogly: I think to understand every aspect of it, probably not. Do I have a good overall impression of some of the areas that we are going to need to reform and that we have been working on for the Green Paper, the answer is yes. But there is a lot there that is very historic, based on the fact that we had this split profession that is now unifying, at least in terms of contracting, and there is a lot of historic baggage coming out of that. There are many other historic aspects—legal aid for particular types of case being given for historic reasons that, now, in the clear light of day, no one can really understand. All of that will be coming out in the Green Paper.
Claire Perry: Thank you.
Q48 Mr Buckland: I must confess to be sitting here with a mounting sense of frustration, Minister. You have quite rightly outlined the difference between your Department and the LSC as currently stands, but would you agree with me that the problem that we have with the current structure is that operation by the LSC has in effect been the policy? Let me explain that. The LSC’s decisions as to allocation of contract affect fundamental policy objectives such as access to justice and their practical decisions are having a significant effect upon the way in which we provide access to justice in England and Wales. We have concentrated on family legal aid and I think that has been dealt with, but criminal legal aid is also a very important part of the picture. Criminal practitioners are facing a similar nightmare scenario—and I don’t use those words carelessly—to that in family law. When the Lord Chancellor gave evidence before us a couple of weeks ago, he said that a large reduction in the legal aid supplier base would be undesirable. It seems to me that the current LSC process is going to achieve a large reduction. Would you agree with the Lord Chancellor?
Mr Djanogly: First, going back to the earlier question, can I just make it clear that, if the LSC won an appeal, the new contracts would start almost immediately, as they would have, of course, had there been no JR in the first place? But a new contract round, if there was to be one, could take up to another year. So then you would get into problems of changing policy. The 2013 agreement, just to make it clear, also applied only to competitive tendering.
So, moving on to the access to justice point, I don’t disagree with a lot of what you have to say, but I would make the point that that is only one aspect of access to justice and one aspect of why you are getting a tendency towards larger solicitor firms, for instance. There are many others. Insurance has gone up hugely, which has meant that a lot of smaller firms have been knocked out of the market; they can’t afford their insurance. The recession has meant that a lot of firms have gone out of business and those that have survived have almost—it would be very rare that you speak to a solicitors’ firm nowadays that has not significantly restructured their practice in the last three years. Some of them have come to the decision—for many reasons, the economy or whatever—that they don’t want to do legal aid any more or other areas of their practice. There are other pressures as well. The proposal to move towards ABSs will see an increased concentration in the marketplace, I believe. That is still to be seen but I think there will be pressures there. And, yes, in legal aid contracting there are again pressures towards larger practices, but I wouldn’t necessarily say that any one of those is bigger than the others. It depends on what part of the country you are in; it depends what pressures there are; it depends how the local economy is being affected by the recession. There are many different levers here. So it is hard to generalise, but I am not saying we shouldn’t take these things on board.
Q49 Mr Buckland: On the Magee Report, which I know you will have considered, presumably some of the very interesting proposals it outlines will be part of the Green Paper process—for example, pooling budgets, devolving budgets, relating to provision of legal services, particularly social welfare type services.
Mr Djanogly: Yes. A lot of work has already been done on Magee. Clarifying roles and responsibilities between the Ministry and the LSC—there was a lot of confusion. That was one of his main proposals. A lot of work has been done on that and a revised framework document is going to be published shortly on that. Strengthening the LSC’s financial systems, controls and accountability—a lot of work has been done on that and improvements are being made, I am pleased to report, to date—continued improvements.
Q50 Mr Buckland: Magee identified significant deficiencies, didn’t it, in the LSC’s financial management?
Mr Djanogly: He did indeed. Last year the LSC’s accounts were qualified. But the movement is towards a significant improvement, I am pleased to be able to say. Then also he identified a lot of opportunities for administrative efficiencies through greater integration, and again work is being done on that. His most significant proposal was, of course, the transfer of the LSC as an agency of the MoJ and we discussed that earlier.
Chair: Anna Soubry, did you have something about family law that you wanted to ask?
Anna Soubry: I did, unless anybody wants to follow up on what Mr Buckland has said. Did you have a followup?
Q51Karl Turner: In answer to something MráBuckland has asked you, you say that firms of solicitors have experienced significant restructuring. Would you agree with me if I was to suggest that some of that is because of the last previous Government forcing them effectively to restructure because of the fees? The severe reduction in fees over the last several years has forced them to restructure. Now, in my view and in my submission to you, they cannot take much more of this. They will close the doors. Enough will be enough.
Mr Djanogly: Yes.
Q52Karl Turner: It has gone far enough in my experience. It can’t take any more.
Mr Djanogly: The point that you make is made by many practitioners.
Q53Karl Turner: But are you listening, Minister?
Mr Djanogly: We are listening and that is why, rather than just coming out with another cut, we are saying no, we have got to look at the whole system. When we look at that system—I will be quite honest—we are not going to look at the number of lawyers we think there should be. We are not going to look at primarily what we think lawyers should be paid. We are going to look at what we think is necessary to support vulnerable people receiving legal advice. That is the starting point and the rest will follow.
Q54Anna Soubry: I think that neatly follows on from what I want to ask you about. It kind of goes back to when we were talking about advice over the telephones and the rest of it. It is the very vulnerable that I am particularly concerned about who I believe are now in great danger, in both the family and the criminal divisions, of losing access to justice and good advice. Iáhave never really practised in the Family Division, but I would make a plea for family barristers and solicitors in this way. I don’t think anybody has a problem in agreeing it is better for people not to go to court and, if you like, slug it out in that unpleasant way, fighting about tea services or whether a child is going to be picked up at two o’clock from outside McDonalds or at three o’clock. That is the reality and mediation is to be welcomed. But, certainly, in my experience and I suspect many others, there is undoubtedly a group of people who are belligerent, very difficult, often deprived in the sense that they perhaps are not the brightest of people, and mediation, with great respect, is never going to work. There is actually a group of exceptionally able, experienced and qualified mediators called solicitors and barristers who are currently representing them and in effect driving mediation, at all times being observed by a judge. I would put in a plea that we never lose that and the ability for people to have that access, because if we just go down a mediation route this will be a recipe for total chaos. We decided last night—there was the expression—it’s only a fool who has himself for a lawyer. It may not be the exact right wording, and I think what I may say also is this. When people are not represented, it undoubtedly makes things last longer and costs more. As a barrister, and I know there are a lot of barristers and solicitors here, we know we speed things up in the justice system. We don’t slow it down.
Chair: I think we ask the Minister questions rather than tell him.
Q55Anna Soubry: Sorry. Would you agree with what Iáhave said?
Mr Djanogly: I do think there is quite a lot in that. What I would say is this. I will repeat the fact that I can assure members of the Committee that when they see the Green Paper they will see that we are looking at these reforms in the context of supporting the vulnerable. In terms of access to justice, let’s just go back to the headline fact, which is that we are going to have to make very, very significant savings across the board in Justice. I can’t say what those will be and I can’t say what they will be in legal aid, but that will become apparent in a very short period of time. So, you know, if you were to say access to justice is having more money, that will not be the case. We are looking at scope. We are looking at eligibility.
Q56 Chair: Are you looking at the adversarial system itself and the representation of multiple parties, because that looks to me like something that, for example, the Norgrove inquiry into family law would look at and this Committee will have to examine when it comes to do its work later this year on family law?
Mr Djanogly: I was very keen, Chairman, that the Courts’ Review went along with the Jackson Review, went along with the legal aid review, went along with the Norgrove Review, and some people have said, “How can you concentrate on all those things at the same time?” I would turn that around and say we have to concentrate on all those things at the same time because they all interlink. So I am very pleased to be able to say that the Norgrove Review has been in touch with the Legal Aid Review, so that they are not operating in silos. But I do have to say that, whilst I do appreciate that there has to be good legal representation, I am very supportive of mediation personally and I think that there is a lot more that could be done in mediation. Too often in our society, and this is particularly true in civil claims, people are now too willing to hand their personal problems over to others to decide—and not just lawyers, by the way, judges as well. Very often people get more satisfaction and more justice—they feel they are getting justice—by sitting in a room and sorting out their problems themselves, and there can be great savings to the public purse in this. I am by no means saying that this is appropriate in all situations, but there is much more room for it in our system and indeed in our society than we have at the moment and we are going to be looking very carefully at this.
Q57 Chair: Can I turn to a number of other issues that we need to raise, some of which are linked to the review of nondepartmental public bodies that came out the other day. I will start with the Office of the Public Guardian. The Public Guardian Office—and we are going to be questioning them in a few weeks’ time—say that they faced an extraordinary volume of work. Their critics, and they are numerous, and their complainants are numerous, say that they are not doing that work at all well. One of the public bodies to be abolished is the Public Guardian Board, which was supposed to monitor the work of the Public Guardian. How are we going to get independent oversight and why was the decision taken to abolish the Board?
Mr Djanogly: The decision was taken to abolish the Public Guardian Board because we simply did feel that we could provide adequate oversight from within the Department and that new governance arrangements could be set up that would provide for that. But we think we could do it better, yes, inhouse, or certainly no worse. But you are quite right that the volume of work has increased exponentially. In 2008, there were 33,653 registered LPAs. In 2010, until 14áOctober, we had 102,726. Obviously, the population is getting older and more people are now realising that this is an important thing to do. So what have we done? We have significantly increased the numbers of people employed and we have now pulled back the delay from 14 weeks to a delay for registering an LPA to 12 weeks. We hope to get it down towards the target of nine weeks. Of course six weeks is the mandatory consultation period, but we are heading in the right direction. The figures are now coming our way. I do, however, appreciate that this is not a problem that is going to get less. We will probably have more of these coming in.
My personal view, Chairman, is also that the current system is overly bureaucratic. These were reforms of course brought in by the last Government in 2005, and the basic philosophical change was from having a system whereby you just registered and then checks would be done if something went wrong to checks being done when you registered, and I think that possibly it has become too bureaucratic and we now have a project to look at this. Some changes have already been made. Only very recently we reduced the size of the form for registration from 24 pages to 12 pages, but I think there is a lot more that we could do. So you will hear more on this subject.
Q58 Chair: Other criticisms are made of the Court of Protection and the Court Funds Office. They are bureaucratic criticisms that it is a very difficult procedure to operate but also that it doesn’t offer value for money, with 0.5% interest on savings and deputies charging fees of over ú200 an hour. There are a lot of anxieties from people who feel that the money isn’t actually being looked after as it ought to be and therefore the fundamental objective to make sure that the money that is available to look after somebody who is not in a position to make their own decisions is protected and used for that purpose is not being satisfied. Do you have anxieties on that score?
Mr Djanogly: First, this was a problem in so far as the organisation was receiving a lot of complaints, and that means, as far as I am concerned, that there are problems. The number of complaints since the court opened has dropped by half to about 2% of cases. Very often with these types of cases, the vast majority have no problem at all and then a very small proportion of them have a problem, and, yes, we do think that we need to improve the situation. It is improving and we have got to keep working at it. The interest issue is an important one. It is technical and I am going to ask Mr McNally to answer that.
Mr McNally: The Court Funds Office operates in a different way to high street banks and building societies. Money deposited in the court funds through the Court Funds Office is transferred to the Court Funds Investment Account and the interest paid to clients is met from interest generated by the money within the Court Funds Investment Account, which is not through loans or high risk investments. The special account rate reflects zero risk of 100% and Governmentbacked guarantee on the original deposits. To offer a slightly higher rate that competes with higher interest paying accounts on the high streets would mean making clients more vulnerable to market forces or to a taxpayer contribution.
Q59 Chair: But is there not some pooling of risk involved here which could ensure that a slightly better interest rate than that was provided because all this money is sitting in a large fund, involving an ever growing number of people?
Mr McNally: Sir Alan, this is an extremely complex area. If the Committee would allow me to, I am quite happy to provide a note.
Chair: Thank you very much.
Q60 Mr Llwyd: Could I just ask one question, Minister. How can you justify paying a solicitor ú200 an hour, or at least that solicitor charging ú200 an hour for work being done in this field, when legal aid lawyers in family and crime would dream of earning anything like that? They earn a fraction of that. What is the reason for it?
Mr Djanogly: Why private—
Q61 Mr Llwyd: The rates that you charge—ú200 an hour plus?
Mr Djanogly: That is the level of fees that is fixed. It is the same for everyone and that is what has been adjudged to be fair in the circumstances.
Q62 Mr Llwyd: You think that a fraction of that is fair for criminal and legal aid practitioners doing crime and family? That is fixed as well as being fair, is it?
Q63 Chair: I do not think you are convinced, Mr McNally?
Mr Djanogly: No. I want Mr McNally to step in on this one.
Mr McNally: In terms of the rates of pay that are paid as a Department to parttime judiciary, the level at which the remuneration is set is to reflect the role that they fulfil as judicial office holders. As to the specific issue as to how much we pay or is paid per hour, again, I am quite happy to provide this Committee with a note.
Chair: A note of the rationale.
Q64 Mr Llwyd: But parttime judicial holders are paid normally something between ú400 and ú500 a day, not ú200 an hour?
Mr Djanogly: We will come back to you on the point.
Mr Llwyd: Thank you.
Chair: Mr Buckland, on some of the other points.
Q65 Mr Buckland: Yes, indeed. As we have been looking at the Office of Public Guardian, perhaps it is right of me, Minister, to first of all turn to the Youth Justice Board. I think we all know the proposal to abolish the Board. What is not clear to me is what is to happen to the functions of the Youth Justice Board. Are they to be absorbed back into the National Offender Management Service—NOMS—or are they to go to some other particular arm? Before asking you to comment on that, can I just ask you whether you agree with this principle: that it is very important when we come to approaching youth justice that we do maintain a separateness from the adult system? Would you agree with that?
Mr Djanogly: Yes. We are proposing that there will be a distinct delivery unit within the MoJ.
Q66 Mr Buckland: Would you agree that NOMS itself, which was designed to in effect create an overview of both people in custody and on community orders, has not really given us that overview?
Mr Djanogly: We do agree that the way the Youth Justice Board operates could be improved and that was part of our thinking in terms of the proposal to include it in the Public Bodies Bill.
Q67 Mr Buckland: Are you aware, for example, that one of the problems with youth justice custodial offences was that we had various distinctions such as detention and training orders that had been created by the 1998 Act and detention in a Young Offenders Institution? They were supposed to be different types of offences, but in fact the reality was that Young Offenders Institutions were treating them as one and the same. In other words, detention and training orders were supposed to be specific projects and programmes and they just weren’t being delivered by the system.
Mr Djanogly: I don’t have a view on that in relation to getting rid of the Youth Justice Board, not least Iáhave to say because it is not my policy area. I don’t do criminal policy within the Department. But certainly the main functions of the YJB will remain once it is within the Department, not least overseeing Youth Offending Teams.
Q68 Mr Buckland: Can I move on to perhaps something slightly more contentious that relates to the ministerial announcement in regard to the Coroners’ system that was made last week? I think those of us with a keen interest in this have read with care the ministerial statement and the letter that you wrote to the Chairman of our Committee dated 13áOctober. There is real concern amongst those with a direct interest, and indeed an indirect interest, in the smooth, proper and transparent administration of inquests that the decision not to create the post of Chief Coroner will in effect fail to address some of the concerns expressed by many who have participated in the inquest system—most notably, apart from all the issues about geographic variation, the lack of an appeal system which aggrieved parties could then use. Currently, as you know—
Mr Djanogly: It is judicial review.
Q69 Mr Buckland: It is judicial review or—
Mr Djanogly: The Attorney-General.
Q70 Mr Buckland: Potentially a reference to the Attorney-General. Judicial reviews are costly and they are cumbersome. Just accepting the premise for a moment that the Chief Coroner’s position is not going to happen and shouldn’t happen, couldn’t an appeal system, say, to a High Court judge have been set up which in the view of many of us would be a cheaper and quicker alternative to judicial review?
Mr Djanogly: I am not going to beat about the bush here. It is going to cost ú10 million to set up and ú6.5 million pounds a year to run. This is new money. This isn’t savings.
Q71 Chair: That is the Chief Coroner’s Office, isn’t it?
Mr Djanogly: That is the Chief Coroner’s Office. Well, it is to set up the whole appeal system; that was what it was going to cost. Frankly, we are not talking about savings here. We are talking about the last Government making another promise for new money and I’m afraid it just isn’t going to work. We could always talk about what would be the best; what we would like to have, but we have got to live within the reality of the situation and we didn’t see that as incurring new cost. Yes, there will not be a new appeals process.
However, the Coroner’s Court has existed in this country for hundreds of years and it will continue to do so. However, again, that doesn’t mean to say that we don’t want to see improvements. On the day of the announcement, I immediately got on the phone to the Coroners’ Society and they are going to have to play—and they accept they are going to have to play—a more important role now because there is no Chief Coroner. The problem we had, by the way, was that originally we had considered that we would put the Chief Coroner on ice. We just won’t enact the legislation and when the money turns up in five/10 years we will put it in place. The problem is that the powers that existed within the Bill—we are proposing to put in place the vast majority of the reform proposals of course, importantly, and it is important that I say that—or most of them attached to the position of Chief Coroner, unfortunately. So we could only keep those provisions in play and reattach them to a combination of the Lord Chief Justice, the Lord Chancellor and the Coroners’ Society by getting rid of the position. That was the problem we had. But I can assure you that getting rid of the position doesn’t mean that we are going to not want to address those very important issues that you mentioned, not least co-ordination between areas, and that will be something we will be concentrating on.
Q72 Mr Buckland: What I had based my question on was the premise that you were right that the Chief Coroner’s position wasn’t going to happen and for the reasons that you have outlined. What I was asking about was in effect why can’t there be a streamlined appeals procedure to an existing High Court judge? Accepting for the moment that all the paraphernalia, the ú10 million, is not necessary, why can’t we just confer a right of appeal to a High Court judge as exists in all civil cases and then avoid the expenditure that you are talking about—
Chair: And avoid judicial reviews.
Mr Buckland: Yes. There must be a tradeoff because of the cost of judicial reviews. Has there been any work into the overall cost of the judicial reviews that have grown like Topsy in this area in recent years?
Mr Djanogly: I think I am right in saying that in Coroners’ terms it is not a huge cost. However, I do take your point on the High Court judge and, if I may, I will come back to you on that.
Mr Buckland: I am very grateful, Minister.
Q73 Chair: There is just one more body before we close this session, which is Courts Boards. Will there be tears shed over the disappearance of Courts Boards?
Mr Djanogly: I don’t think so, Chairman. They didn’t meet the tests that we set. Is the body needed in order to perform a technical function; is it politically impartial; and is it needed to act independently in order to establish facts of access? It just didn’t meet those tests. I have to say we have not received—I don’t know—have we got the consultation responses? I don’t think it has been hugely replied to.
Q74 Chair: Do I take it that members of the judiciary in particular didn’t feel that it was a good use of their time or a body with the powers or teeth that would have made it a good use of their time?
Mr Djanogly: I think there is something of that, Chairman. Mr McNally, would you like to assist?
Mr McNally: Yes. When I worked as area director for Cheshire and Merseyside, I worked with the Courts Board. The Courts Board’s Chair and the composition of it at times provided very helpful advice to me in exercising my particular role. However, I would have to say that the costs that can be saved as a consequence of the abolition of the Courts Boards was not something that could be dismissed or overlooked. Let’s not forget that they were appointed in a nonexecutive capacity. There were people on the boards who were selected and represented their local communities, but I was able to obtain information in relation to local communities from other sources such as magistrates through Justices’ Issues Groups and Judicial Leadership Groups.
Chair: Thank you very much, Minister, and Mr McNally, for being with us this morning. We look forward to hearing from you on a number of issues and to draw your attention to all sorts of things in the coming months as we continue our work. Thank you very much.