TUESDAY 2 NOVEMBER 1999

THE RT HON THE LORD IRVINE OF LAIRG QC, MR DAVID LOCK MP AND SIR HAYDEN PHILLIPS KCB

  1. Good morning, Lord Chancellor and Sir Hayden. Thank you for coming to see us. We want to start, if we may, by a canter over the changes and reforms which have been put in place, specifically with the Community Legal Service (CLS). This has the responsibility to assist in the coordination of local networks to provide information on legal rights and responsibilities, advice based on a person's individual circumstances and assistance in resolving legal problems. Can you please tell the Committee how you see the Community Legal Service trying to ensure that there is better access to legal services right the way across the country, in other words that we get away from any postcode problems within the Community Legal Service?
  (Lord Irvine) First of all, may I start by congratulating you for having assumed the Chairmanship in place of Chris Mullin. Second, you are absolutely right to focus on the Community Legal Service because it is right at the heart of our reforms. What I should like to do, if I may, is just put it into a larger picture and then come straight back to the Community Legal Service. What is important is to see the whole thing in the round, at any rate as we see it. I would be the first to admit that legal aid has not been the most popular public social service. What my party won the general election on was the proposition and the pledge that we put schools and hospitals first, not legal aid first. What I want to be is brutally frank with the Committee. Legal aid is synonymous in the public's mind with lawyers' bank balances and the public have a vision of restrictive practices, overmanning, overcharging, and, in high cost criminal cases, fees which appear to be grossly high. The big picture about the Access to Justice Act is that it will wipe out restrictive practices once and for all. Second, it will allow legal aid work, where it can be efficiently done in the public interest by the private sector at no cost to the taxpayer, to be done under conditional fee agreements and that of itself will bring millions of people into access to justice for the first time. By this means we intend to free up resources so they can be directed at the real needs of ordinary people in their daily lives. That is where the Community Legal Service comes in. The whole spirit of the Community Legal Service is partnership and it will be partnership arrangements operated locally, underpinned by concordats. So you started right at a core issue. Secondly, to go over as far as possible to contracting, so far as possible at fixed prices, especially for professional lawyers, at fair prices for quality assured legal work for the benefit of consumers. So lawyers are not going to come first but consumers are going to come first. Finally—and this is all I want to say by way of opening—will this make a difference to the overall pattern of provision of legal services? Of course it will; that is what it is all about. The object is to ensure that people know where to go to get the help they need, people are entitled to be assured when the state spends public money on them that it will go on quality assured legal work. A good example of that is when the state funds people's cases say in medical negligence cases. The state should not point them in the direction of a lawyer who does not have the expertise to do the case, they should point them in the direction of people who are quality assured and experienced and capable of taking on the defendants' insurers, lawyers who are highly expert and highly experienced. That is the big picture. It may be that you would like to ask me specific questions about where the Community Legal Service is involved.

  2. Yes, may I come to that. What I have in mind are not simply rural areas and inner city areas but what we would call the outer city areas, the big estates on the edge of cities, many left now with no banks, some with post offices gone or under threat, not because of usage but because of danger to staff going in and out of those places. How is the Community Legal Service actually going to monitor what is happening on the ground to identify need and do its best to ensure that this need is met where it is best met, nearest to where people live.
  (Lord Irvine) First of all of course everybody in this room knows that this is a giant new undertaking and everybody knows that Rome was not built in a day. We have a very clear idea of what we want to achieve and how we want to monitor things. Let us start with the "as is". What we have at the moment is a geographically fractured, uneven spread of legal services both provided by professional lawyers and provided by voluntary services who are hugely important across the country. So if a basic initial point, which I think was implicit in what you were saying, is that the geographic spread is not even because places are not even and they all have different needs, then that point is well taken and well appreciated. The second thing I want to say is that the Community Legal Service is a Labour Party manifesto commitment and we are determined to make it succeed. The Community Legal Service is going to be launched nationally in April 2000. What we have started off with is six pioneer areas where there are partnerships which are local networks who are concerned with coordinating local funding, finding out what local provision there is and mapping where the present resources are, mapping where they are going and trying to identify unmet need and then addressing questions once you identify where the unmet need is.

  3. Is your department doing this monitoring at the moment?
  (Lord Irvine) No, this is being done at the moment by pioneer partnerships. I will tell you about the pioneer partnerships in a second. My department of course has complete oversight of this and what we are going to be doing is producing by April 2000 guidance for the whole country which my department is overseeing, which is drawing from all the experience of these pioneers. I hope you will think the pioneers represent a kind of cross section of the country. The pioneer areas are Cornwall, Kirklees, Liverpool, Norwich, Nottinghamshire and Southwark. These are urban areas, semi-urban areas, rural areas and we are trying to develop models of best practice. There are also associate pioneers and I think these are 44 in number. What are they actually about? Needs assessment first and foremost. Map the existing provision of services. Identify the gaps. Plan how to meet the gaps and, very important, work out referral networks so that people are not bounced when they go along to one place from one bureaucratic box to another so that they just get fed up and grin and bear it. Therefore the point is referral networks. Also we hope that by developing concordats within each relevant area—and these areas do not have to be confined to particular local authority boundaries in particular areas the right answer might be to have networks which straddle these governmental boundaries for just the reasons you were indicating—we hope that the concordats, the agreements which these bodies will enter, which all the partners in the partnerships will enter into, will amount to undertakings each makes to the other so that we have some yardsticks of what each is agreeing to do. You are also really asking me about availability and what we aim to do is to have at least one third of the population—I hope more—but at least one third of the population covered by partnerships by autumn 2000, two thirds of the population by spring 2001 and 90 per cent by the beginning of 2002. One thing is that there is enormous enthusiasm around the country for this. In the various local visits I have made to the voluntary sector and many parts of it, I have been really struck by the enthusiasm, the commitment, MPs, councillors, voluntary workers, everybody on the ground to make a go of this. What is very important is to capitalise on it.

  4. I can certainly confirm the enthusiasm for this, especially in the voluntary sector. You have said that a common accreditation scheme is going to anchor the Community Legal Service. Could you tell us please who is going to award the quality mark and monitor the quality of the service provided?
  (Lord Irvine) There is a quality task force. Who are the task force? They are made up of all the major advice sector umbrella bodies. They are made up of the major funding organisations, so they of course involve the local authorities they involve consumer groups, they involve the legal profession. They were set up earlier this year and their objective is to develop criteria for a Community Legal Service quality mark. What they are not doing is doing this completely off the top of their heads. What they are doing is drawing from the many other quality marks there are around which providers find quite confusing and it is going for a uniform quality mark. Consultation on this area, developing this quality mark, ended in October of this year. I hope that before the end of the year proposals for a quality mark will have come to me and I hope that I, with the assistance of my department, and with all the consultation which will have lain behind the proposals which are coming to me, my target for myself is to approve the proposals by the end of the year.

  5. Once that is done who would actually award the quality marks?
  (Lord Irvine) As I understand it, the quality marks would be awarded by the quality task force. It may be by the Legal Services Commission when it is up and running and that would probably make sense.[1]

  6. Will you make this clear? I presume you are going to have some response to the recommendations and it might be appropriate at that time to make clear to people just exactly when the scheme has been agreed and who is going to do the awarding.
  (Lord Irvine) Yes, it should be made quite clear who is going to do the accrediting, but this quality mark should be a benchmark of quality which should command great confidence because everybody who is really involved on the ground in all this has contributed. I agree that the natural person to accredit would be the Legal Services Commission or some more specialist body within the Legal Services Commission but it will lead to a common approach to standards and it will give funders confidence which is very, very important.

  7. We have had some concerns expressed to us by the Citizens' Advice Bureaux who are wholly in favour of this but they have a separate and distinct role, campaigning role. Are there going to be some safeguards to protect the advice sector, including the CAB, in this kind of work as well as that which they will carry on as part of the Community Legal Service? There are differences there, are there not, which should be respected?
  (Lord Irvine) Certainly we respect both the values and the objectives of the voluntary sector. Their cooperation is critical for the success of the Community Legal Service. For example, we respect their free-at-the-point-of-delivery ethic. I entirely recognise that they have a campaigning function and good luck to them, the best of luck to them because their object is to secure better funding for what they do. In all my knowledge of them, they are not short of volunteers. What they want to do however is to have the facilities and the resources to train the willing volunteers to be effective. I have no doubt at all that it is well within the objectives of the Community Legal Service for them to continue their campaigning role. I see no conflict at all.

  8. May I take you finally to alternative dispute resolution? A very, very important part of this package in my view. Your department has asked for more information about how this is working out. What are you actually doing to obtain this information? There is a feeling, particularly in the voluntary sector, that there is a lot of scope for this, to resolve people's problems short of going into court.
  (Lord Irvine) As a result of a decision which I made we now of course make legal aid available for mediation. It is very important. We have to keep mediation in proportion. It is very important to encourage it and there are particular areas where it deserves to be so strongly encouraged. One of course is the family area. It is critical there; a great deal can be achieved there. If you were to ask me what the classic area is for promoting mediation, it is in any area where the parties have to have a continuing relationship. Even when people divorce they have a continuing relationship of necessity for the benefit of the children of the marriage. So mediation and when I said a moment or two ago that we must keep mediation in proportion I do not mean by that for a single second that it is not an excellent thing and preferable to a litigated outcome when it can be achieved. What we have done is that we have published a discussion paper on it, we are planning pilot schemes and we are evaluating research in other common law jurisdictions. There has been a pilot in the central London County Court for example. I do not have the figures immediately beside me but a high level of satisfaction was expressed by those who went for mediation and a very low level of people who wanted to go to mediation and maybe it was as low as 11 per cent, but that is off the top of my head. I remember being struck by the small percentage of people who wanted to have anything to do with it, combined with the high percentage of those who were quite pleased with it when they had it. What that shows is that we have to develop information about mediation and that people have to have confidence in mediation and that we have to develop systems for ensuring that mediators are properly accredited. One of the things we have to remember is that if mediation does not turn out to be the kind of panacea we might all like it to be to a greater extent, then all we will actually have done, is created a new costly tier to no advantage. You have to proceed very carefully. Evidence of my own personal commitment to mediation is that I ensure that in the new unified rules for the County Court and the High Court which, as you know, are principally aimed at bearing down on the worst sins of the legal system, cost and delay, I actually paradoxically built in a little bit of delay so as to give an opportunity for mediation. The courts now are willing, even though they are cracking the whip over the parties, to get on with the case at the speed the courts want and not at the speed the parties or their lawyers might want. We still have made provision, basically putting it at its shortest, for a month's adjournment to enable people to give mediation a try.

  9. You mentioned the importance of marriage and the family in this. Can you tell us when you are likely to respond to the recommendations of Sir Graham Hart about the implementation of section 22 of the Family Law Act? This is funding for the marriage support agencies and there are many of them awaiting your decision on the recommendations.
  (Lord Irvine) Very, very, very soon is the answer.

  10. Before the end of the year?
  (Lord Irvine) Yes; certainly. I have already indicated that I am favourably disposed to this. I have already said that in terms. Across government—again off the top of my head—about £4 million per annum is spent on marriage support and the various agencies, the names of which we all know, but the great majority of that comes from my department, about £3 million. I am hugely in favour of it and there will be a positive response.

  11. May I confirm that I have an interest as a barrister? At the Bar Conference in September 1996 you said of legal aid that cost capping "... was unattractive in principle, because legal aid would cease to be a benefit to which a qualifying individual is entitled. It would ... become a discretionary benefit ... that would have to be disallowed when the money ran out, or when another category of case was given preference". Then, during the committee stage of the Access to Justice Bill in December of last year you said "I operate within a controlled budget. The truth is that the only money that is left for civil legal aid is what is left over out of the budget after the requirements of criminal legal aid have been met". Am I right in detecting a degree of tension between those two statements? Have you not caused to occur that which you said three years ago was unattractive in principle?
  (Lord Irvine) First of all, the plain facts of life within which I have to operate, although I could wish that I had a magician's wand to change the plain facts of life, is that criminal legal aid is guaranteed by the state under conventions to which it is party. I do not think that anybody round this table would take the view that if the state takes people to court and they can end up losing their liberty the state does not have to provide them with proper legal services to defend them. I should be very surprised if that were not a principle which we have all accepted. That does not, however, mean that I sit back complacent at overcharging in the criminal defence area. The fact that this is a high priority does not mean that it must have its priority status abused by being milked by lawyers. I have to bear down and you are quite right, very largely for the benefit of the civil legal aid budget, but I had to bear down very, very hard indeed on overcharging on criminal legal aid. Yes, if I fail there will be less money for civil legal aid. These are the facts of life within which I operate. I do not believe that the money is going to run out in any particular year. If that were to happen, then of course I can always go to my Cabinet colleagues and seek further resources. However, it is the duty of every spending Minister to live within his department's means. I think that on the criminal front I will be doing a vast amount. Basically the fact that one per cent of the cases swallow up 42 per cent of the budget is a pretty outrageous statistic to everybody round this table and I am going to bear down very, very hard on high cost criminal cases and the main engine of doing so is going to be contracting. I could give you a great deal of detail about it but perhaps that would not be to follow the course that the Chair has in mind; I do not know. These are my answers to that. I also think that the Community Legal Service, if it succeeds—and I am determined that it should succeed—will make a much more attractive plea to Government for new resources than traditional legal aid has made because of the perception I mentioned at the outset, that traditional legal aid feeds lawyers' bank balances. I started off by saying that conventional legal aid was not the most popular of public social services. The Community Legal Service will increase the popularity of legal aid considerably and these are things that people who have to determine priorities in spending, schools, hospitals, legal aid, have to take into account. I face really quite staggering figures on this. Average payments in civil legal aid rose from £1,875 in 1993-94 to £3,239 in 1998-99, an increase of 73 per cent and the number of people helped fell by 21 per cent; so much more money to help fewer people. A similar pattern shows in crime.

  12. May I press you on a couple of implications of what you have just said? Bearing in mind that in September 1996 you said that cost capping was unattractive in principle, and bearing in mind that the CLS fund is capped, as I understand it—
  (Lord Irvine) It is not capped. It is a controlled budget; I know exactly the means within which I have to live and in fact for the three years of the current spending round I will have available to me to spend more money than our predecessors predicted would be spent on legal aid. This is not a state of affairs which merits the description of cutting but it is a controlled budget and the view of the Government is that I, in common with all spending Ministers, have to live within a controlled budget.

  13. Bearing in mind the way in which it is controlled, is it right that if the criminal legal aid budget overruns, the civil legal aid fund must necessarily be squeezed?
  (Lord Irvine) The point is that if I have a given expenditure level, and if any part of it overruns, be it civil or criminal, the other will suffer. It is my job to ensure that they do not overrun. I cannot give any better an answer to you than the ones I have already given, that I intend to bear down firmly through contracting at fixed prices on the criminal legal aid budget and by these means I believe I will bring the criminal legal aid budget down for the benefit of the Community Legal Service. One of the reasons for extending conditional fee agreements to cover all kinds of litigation other than family, is to enable the private sector to undertake at no cost to the taxpayer certain categories of work which we have no doubt it will carry out effectively and so free up resources which would otherwise go on the areas to be covered by conditional fee agreements and allow us to redirect the resources in the direction of the Community Legal Service. You have to see it as part of a plan and not merely look at the antithesis between criminal and civil legal aid.

  14. May I press you on one further matter related to that issue? If your attempts to bear down on the CDS fund are not as successful as you anticipate they will be, as I understand it you have stated previously—during the Third Reading of the Act—that there was nothing in the Bill which required an overspend to be made good from the CLS, and that your colleagues would expect you to offset the overspend by making savings elsewhere?
  (Lord Irvine) That is the very first position. That is almost a classic position for the state of affairs that affects a Minister when he is overspending in some area; he is expected to make good an overspend elsewhere. The trick is not to allow the overspend.

  15. Bear with me a little while. Given that legal aid represents two thirds of your departmental expenditure, it cannot be likely that the extra funds would be found other than from the CLS if there is overspending by the CDS. Is that not right?
  (Lord Irvine) I can look for savings everywhere but let me be the first to admit to you that I will not have succeeded unless I hold down the Criminal Defence Service budget. I acknowledge that but I am going to do it. Wait and see; wait and see. Let me tell you what we are going to do. In April 2000 we will have the fixed price contracts in the first high cost cases. In April 2000 we shall have new rates for criminal cases. In October 2000 we shall have contracts for criminal defence and advice and assistance in magistrates' courts. You will know that is happening when you hear the squeals from the lawyers. You do not need me to anticipate it. In early 2001, we shall be conducting pilots into salaried defenders. By 2002 all very high cost criminal cases will be subject to contract as far as possible at fixed prices. By 2003 all Crown Court work will be subject to contract. If you want to know what my secret for success is, it is not much of a secret, it is just that lawyers cannot go on living their lives being paid by the hour on a taximeter. We have to contract with them for prices. It is an old-fashioned technique but it works.

  16. Does that not mean that whilst you originally said that cost capping was unattractive in principle, in fact you have now come to see certain advantages with cost cutting?
  (Lord Irvine) I think that everything I have been saying has been aimed to persuade you and your colleagues round the table that I do not intend to allow the money to run out for civil legal aid. If that were to happen, then I would be in a certain amount of difficulty, but I can look for savings elsewhere in my department and I can go to my colleagues. What I am doing is just saying to you what any spending Minister taxed with these questions would say. We have to do two things. We have to live within our means according to the priorities the Government have set, which I am afraid did not put legal aid ahead of schools and hospitals—of course I am not really afraid; schools and hospitals do come before legal aid for lawyers. Then it is my job as Lord Chancellor to fight my corner for legal aid with my Cabinet colleagues in the future. However, I have a strong belief that I will be better able to do that if I make a real go of the Community Legal Service.

  17. I wanted to come onto the question of funding by local authorities. During the Access to Justice Bill committee stage, you set your face against a clause that would oblige local authorities to contribute. I represent an area, Wandsworth, where the local authority still does not give any money to its local law centre, although it does of course contribute to advice agencies. Can you explain to the Committee what will happen if there is a local authority which refuses to get involved in a CLS partnership or provides inadequate funding?
  (Lord Irvine) That is a very good question and it is one to which I give a lot of thought myself. Let me just tell you about a decision of principle that we took. You could of course have sought—I would have needed the agreement of my colleagues in Government to it—at the time of the Access to Justice Bill to put a statutory duty on all local authorities. We took a decision not to do so. That is not to say such a decision might not be taken sometime in the future. We took a decision not to do so for the very good reason that to develop a Community Legal Service really required wide ranging cooperation which I tried to describe to you on a voluntary basis. The view was taken that we would get off on a very, very wrong note if we imposed a statutory duty because we would not get these co-operative standing arrangements in place. We would not get a Community Legal Service which would be a kind of model for what joined-up government means if we started it under the lash of a statutory financial duty. I would hope that local authorities will do what most of us would regard as their duty and if they fail to do so then perhaps electors at the right time would draw the appropriate conclusions. You do in fact focus attention on what is a very serious issue: where does the advice sector get its funding? They will all tell you, and they will be right, that they are precariously funded. I think the Legal Aid Board provides about £80 million a year, the local authorities up and down the country provide about £130 million to CABs, to law centres and the like. There are central government grants of about £20 million, mainly to NACAB and to Shelter. The National Lotteries Charities Board makes £33 million available. The London boroughs' grants amount to £28 million and this of course is to look at it from government, not from charitable sources.[2] There is no doubt at all that what is really needed is a crusade to persuade local authorities to do more. That is where, if I dare say it in this room, local MPs and local councillors come in. We are really trying as hard as we can to harness enthusiasm for this project which I was pleased to hear the Chair acknowledge he is very conscious of from his own experience.

  18. We will happily join you in the crusade. What if at the end of the day there are unacceptable geographical differences in the provision of CLS? Will you then reconsider using compulsion?
  (Lord Irvine) Yes; yes, I would, certainly. However, it is not for me alone. Let me tell you a graphic conversation I had recently in a tremendously well run and impressive CAB. They were telling me about how so much of their work was with people who got into debt. I asked how much good they did once they were able to help. They said quite honestly a fantastic amount of good. I remember the conversation. You do one of two things if you are in real debt: you either reschedule the debts or you go bankrupt which is what it comes to. Their record of success apparently in this particular CAB—and I was completely convinced by them—in rescheduling people was absolutely superb. In a sense it is not all that surprising because we are talking about people of very ordinary means and the creditors get nothing out of bankruptcy. You are far better to have a rescheduling of debt. They told me quite dramatically that if they advertised the debt service they provided in the local press they would be swamped with takers and they would not be able to undertake the work. But they did undertake the work that came in the door so effectively. I think that is a graphic example of what we are talking about.

  19. The civil legal aid, the green form that people on the lowest incomes fill in. As I understand it full legal aid is provided to those people who pass a means test and a merits test. Does that also apply to people who may be on low incomes but have capital?
  (Mr Lock) As I understand matters, there is a limit of £6,750 on capital. I am not quite sure how the contribution system works but obviously the more capital you have the more contributions you are expected to make.

2   Note by witness: In six rounds of funding, the National Lotteries Charities Board has provided £33 million for services with at least an element of advice work. The London Boroughs' grants are distributed to approximately 650 voluntary organisations, around half of which have some involvement in providing advice services. Back