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Lambert’s
Yard 18th July 2003 Our
Ref : DAC/PC Sir
Nigel Wicks, Dear Sir, I am writing to you in connection with the consultation paper issued by the Lord Chancellor’s Department in June 2003. The consultation paper is sub-titled “Delivering Value for Money in the Criminal Defence Service”. The subject matter is of considerable importance not only to lawyers but also for many concerned with the rights of the individual and the need to have sufficient and proper safeguards in place to protect those rights at all stages of the criminal investigation and prosecution system. In reading the consultation paper I believe that its importance must be well understood to the Lord Chancellor’s Department and the ministers responsible. I am prompted to write to your committee having read the code of practice on written consultation dated November 2000 and which contains an introduction by the Prime Minister. When reading the introduction I notice such expressions as “a real contribution to modernising the way the country is governed” and “better consultation means better results”. The consulation paper that I refer to above claims to be “conducted in line with the Code of practice on written consultation issued by the Cabinet Office”. It further claims “it falls within the scope of the code”. I have not compared the whole of the consultation Paper with the whole of the Code of practice but there are two very significant breaches of the Code of practice that I would wish to draw to your attention and invite you to consider whether steps should be taken so as to remedy all defects and call to account those responsible. My particular concerns that I would wish to draw to your attention can be found at criterion 5 of the code. The criterion is very clear in what it is seeking to achieve and I do not propose to go through the whole of the 5 paragraphs to highlight any particular point save those referred to below. It is made very clear that 12 weeks should be the standard minimum period for a consultation. The criterion explains quite adequately why this should be the case and goes on to accept that sometimes there would be circumstances, which unavoidably require a consultation period of less than 12 weeks. The consultation paper in question is dated June 2003 and requires any response to be received by that Department by the lst August 2003. That would appear to be some two thirds of the recommended minimum period on a consultation that has far reaching implications not only for those who have been consulted specifically but also many ordinary members of the public who are not directly targeted by the Department for consultation and who would probably find it very difficult to respond within such time scale. Judged by criterion 5, I would say that the Lord Chancellor’s Department ought to have allowed a period in excess of 12 weeks for consolation. The danger of not allowing more than the minimum period for something of such importance is that the impression would be given that the Lord Chancellor’s Department is not actually interested in responses from those directly interested in the subject matter and/or is not interested in allowing a period for consideration that would allow for better considered responses. In any event, sub-paragraph 3 of criterion 5 deals with those situations where, through urgency, it is in the public interest that a period of less than 12 weeks should be allowed for consultation. I note, in passing, that criterion 3 adds the words “real urgency of this sort is rare”. In situations where less than 12 weeks is allowed, the consultation document should state “Ministers’ reasons for departing from the code and what special measures have been taken to ensure that consultation is nevertheless as effective as possible”. If there were any regard paid to this paragraph of criterion 5 then I would say that it is inadequate. In all honesty I cannot find any explanation for the reduced period. For the reasons identified by the Prime Minister in his introduction and further explained in the general principles of the code, I feel aggrieved that I am being required to deal with my representations during such a reduced period of time that I cannot give the full consideration that I would have liked to have given to this. There are many people in my position who would also like to have taken the opportunity of not only considering their representations but discussing with colleagues and thereby seeking to refine and/or add to such representations. Its is, therefore, with these points in mind that I ask you to look into the behaviour of the ministers responsible for this consultation document and hopefully, in some way, cause an acceptance of some wrong doing on their part and in some way an amelioration of the situation. I have already referred to some words that the Prime Minister used in his introduction relating to “modernising the way the country is governed”. It is a pity that the attitude of the Lord Chancellor’s Department appears to be that it only has to pay some lip service to the code while claiming to act within the code. Rather than explain matters as envisaged by criterion 5, the Lord Chancellor’s Department sets out in its consultation paper those parts of the code that it has purported to comply with. What is quite clear, therefore, is:- 1. The Lord Chancellor’s Department considers itself to be somewhat above the rest of the government. The code of practice only has to be followed by that Department to the extent it is prepared to follow it, and 2. The Lord Chancellor’s Department is well aware of its shortcomings with regard to the code of practice as it has set out those parts of the code of practice that it has complied with together with a part of criterion 5. I would appreciate it, therefore, if you could kindly confirm whether the Lord Chancellor’s Department is required to comply with the code of practice (especially when it purports to do so). If it is not, then as a citizen I feel that it is unfortunate that the code of practice does not make it clear that government departments to not have to comply. If the Lord Chancellor’s Department should comply with the code of practice, on what basis do the Ministers believe that it can refuse to deal with those parts of the code of practice that are included to assist those consulted to understand why such a short consultation period is allowed. It would go some way to helping Ministers to avoid potential claims of arrogance as, when complying with the code of practice, they will have explained their actions when curtailing the consultation period. Having raised the concerns over the way the Lord Chancellor’s Department has had regard to the code I would like to turn to a different matter and one which is of no less importance than the above. The consultation purports to have the most laudable aim of delivering value for public money in the criminal defence service. Although it is predicated upon a false premise, I do not need to go into everything for these purposes. After correctly pointing out in paragraphs 1, 2 and 3, on page 3 of the consultation document, that great strides have already been made in controlling this particular budget (Public Funding), paragraph 4 then makes out a clear case for addressing the perceived problem further. Unfortunately, this paragraph, that will appear to some to be the basis of the whole consultation, is based on an untruth. It is this matter that I would like to ask your committee/department to investigate. If this consultation is based on an untruth then I would hope that the full reasons for this can be made public and matters looked at afresh and properly. The basic untruth is that “there has been a significant increase in expenditure in the CDS over the last year but the number of people receiving funding has actually fallen substantially”. First of all, the assertion that there has been a significant increase in expenditure over the last year needs to be looked at. It appears to be predicated on the basis of annexe B. Looking at annexe B we see that the figures do not in fact deal with last year’s situation. They stop at the year 2001/02. This is a very important mistake because the change in the system of payment in April 2001 will have caused an impression of increase but those at the Lord Chancellor’s Department would know the reasons for this. They will have no doubt (assuming a minimum level of competence) that the increase is explained at least to some significant extent because of the rule introduced that allowed payments on account to solicitors practices from April 2001. Also, it is noted that no attempt whatsoever has been made to factor into the figures the various changes in criminal law procedure that were also introduced at around the same time. The main complaint, however, arises with the assertion that “the number of people receiving CDS funding has actually fallen substantially”. It is this assertion that I am even more concerned about and which I consider to be the main untruth. Annexe B in fact refers to “acts of assistance”. There are two areas that I would like to draw to your attention. These are areas that will be well known to the Lord Chancellor’s Department and, therefore, could not have been overlooked when making the assertion in paragraph 4. The two areas are:- 1. The total acts of assistance for the period 2000/2001 was inflated due to the change in the rules being introduced in April 2001 which encouraged solicitors to submit, before the new rules came into force, claims for police station work that would in the normal course of business have been submitted after the coming into force of the new contract provisions in April 2001. This would mean that the figures for 2000/2001 will be slightly inflated and the figures for 2001/2002 will be slightly deflated. The people in the best position to know precisely how the figures were affected at that time will be the Lord Chancellor’s Department and the Legal Services Commission who have full access to all of the statistics. 2. Of no less import is the reference in the annexe B to “acts of assistance”. I understand that the system up to and including April 2001 meant that if a solicitor attended at the police station to act for e.g. three clients who were all interviewed and bailed to another date, the bills for acting for all three clients would be submitted individually upon the solicitor’s return to his office. When the fresh bail date took place requiring a further attendance at the police station for the same three clients, that would have resulted in three further bills at that later time. Post-April 2001 the above scenario (which is far from unusual) would have resulted in a single bill i.e. one act of assistance being submitted after the end of the investigation stage of this matter. It is clear that the number of bills is seriously reduced after April 2001. None of this comes as a surprise to the Lord Chancellors Department. Unfortunately, the Lord Chancellor’s Department has not given sufficient statistics with the consultation document that we can be sure that when the document claims in paragraph 4 of page 3/4, that the number of people receiving CDS funding has fallen substantially, that this is in fact made out in the statistics. If in fact the Lord Chancellor’s Department has managed to break down the statistics so that they are comparing like with like, it would have helped us all if they could have explained this. Arising out of what is said above, it should also follow that we are considering significant amendments to the CDS budget on the basis of statistics that are now out of date. The Lord Chancellor’s Department and the Legal Services Commission should now have statistics bringing us up-to-date i.e. for the year 2002/2003. The Department cannot claim that those statistics are not available. They will be available and if they do not support the contention in paragraph 4 of the document then it may very well be that the inference should arise that such detail was left out deliberately in order to give false support to an untrue assertion. The combination of a rushed consultation coupled with inadequate and/or misleading statistics causes such concern about the whole process that I feel obliged to write in these terms. As it is not totally clear which Committee/Department would deal with such matters, I will send copies to the Cabinet Office and to the Prime Minister’s Office. I look forward to hearing from you at your early convenience bearing in mind that the consultation period is due to end by the lst August next. I look forward to hearing from you and thank you in anticipation of your kind attention. Yours faithfully
Dennis A. Clarke
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Copyright 2004 ~ Clarke Kiernan Regulated by the Solicitors Regulation Authority - No.262841 |