The Committee was established, in accordance with Assembly Standing Order 49(7), by resolution of the Assembly on Tuesday 21 May 2002. The function of the Committee is to consider the proposal for a Draft Access to Justice (Northern Ireland) Order 2002 referred by the Secretary of State for Northern Ireland and to report thereon to the Assembly by Tuesday 2 July 2002.

The Committee has 11 members, including a Chairperson and Deputy Chairperson and a quorum of 5. The membership of the Committee is as follows:-

• Mr Gregory Campbell MLA, Chairperson
• Mr Alban Maginness MLA, Deputy Chairperson
• Mrs Eileen Bell MLA
• Mr Duncan Shipley Dalton MLA
• Mr David Ervine MLA
• Mr John Kelly MLA
• Mr Mitchel McLaughlin MLA
• Prof. Monica McWilliams MLA
• Mr Danny O'Connor MLA
• Mr Ian Paisley Jnr MLA
• Mr George Savage MLA

The Report and Proceedings of the Committee are published by the Stationery Office by order of the Committee. All publications of the Committee are posted on the Assembly's website as http://www.ni-assembly.gov.uk/

All correspondence should be addressed to the Clerk of Ad hoc Committee, Room 371, Parliament Buildings, Stormont, Belfast BT4 3XX.

Introduction

Remit of the Committee

Proceedings of the Committee

Background to Access to Justice in Northern Ireland

Review of Legal Aid in Northern Ireland

Access to Justice (Northern Ireland) Order 2002

Committee's consideration of the proposed draft Access to Justice (Northern Ireland) Order 2002 12

General Comments

Establishment of the Legal Service Commission

Provision of Civil Legal Services

Provision of Criminal Legal Services

Quality Standards

Other Funding of Legal Services

Appendix 1 - Minutes of Proceedings

Appendix 2 - List of Witnesses

Appendix 3 - Minutes of Evidence

Appendix 4 - Written Submissions to the Committee

1. This is a Report made by the Ad hoc Committee to the Assembly, pursuant to the resolution of the Assembly on Tuesday, 21 May 2002. The Report describes the work of the Committee over the period 6 June to 24 June 2002.

2. As agreed by the Assembly, the Committee had the following function:

To consider the proposal for a draft Access to Justice (Northern Ireland) Order 2002 referred by the Secretary of State for Northern Ireland and to report thereon to the Assembly by Tuesday, 2 July 2002 .

3. A copy of the above paper is available from the Northern Ireland Office's website at http://www.nio.gov.uk/

4. During the period covered by this Report, the Committee held five meetings: 6, 11,13, 17 and 24 June 2002. The Minutes of Proceedings for these meetings are included at Appendix 1.

5. In the course of its proceedings, the Committee heard evidence from the following bodies -

• Lord Chancellor's Department
• Northern Ireland Association of Citizen Advice Bureaux
• Northern Ireland Human Rights Commission
• Law Society of Northern Ireland
• General Council of the Bar of Northern Ireland
• A complete list of those who gave evidence to the Committee is included at Appendix 2.

6. At its meeting on 11 June 2002 the Committee received evidence from the Director of Legal Aid from the Lord Chancellor's Department on the proposal for a Draft Access to Justice (Northern Ireland) Order 2002. The Director of Legal Aid was accompanied by the Business Manager, Order in Council Implementation Team. The Lord Chancellor's Department made a written submission to the Committee in advance of their attendance.

7. At its meeting on 13 June 2002 the Committee received evidence from the Chief Executive of the Northern Ireland Association of Citizen Advice Bureaux and the Chief Commissioner of the Northern Ireland Human Rights Commission. The Northern Ireland Association of Citizen Advice Bureaux and the Northern Ireland Human Rights Commission outlined their view of the proposed Draft Access to Justice (Northern Ireland) Order 2002. The Northern Ireland Association of Citizen Advice Bureaux and the Northern Ireland Human Rights Commission made written submissions to the Committee in advance of their attendance.

8. At its meeting on 17 June 2002 the Committee received evidence from the Law Society of Northern Ireland and the General Council of the Bar of Northern Ireland. The Law Society of Northern Ireland and the General Council of the Bar of Northern Ireland outlined their view of the proposed Draft Access to Justice (Northern Ireland) Order 2002. The Law Society of Northern Ireland and the General Council of the Bar of Northern Ireland made written submissions to the Committee in advance of their attendance.

9. The Minutes of Evidence for these meetings are included at Appendix 3.

10. On 19 February 1998 the Government announced a review into the provision and administration of legal aid in Northern Ireland. The announcement indicated that officials would:

(a) undertake a review into arrangements for the administration and provision of legal aid in Northern Ireland, bringing forward recommendations for change where necessary;

(b) consider, in the Northern Ireland context, the proposed reforms to legal aid in England and Wales.

11. As a result of this review a Consultation Paper, "Public Benefit and the Public Purse" was published on 14 June 1999. Publication of the Consultation Paper marked the commencement of the first substantive public discussion on legal aid for many years. The Consultation Paper set out the Government's objectives for and commitment to the modernisation of legal aid in Northern Ireland. The objectives set by Government in the Consultation Paper are summarised as follows:

(a) ensuring appropriate funding arrangements are in place to secure access to the most appropriate means to resolve legal issues for citizens;

(b) targeting resources to those in greatest need;

(c) ensuring that the overall cost of legal services is affordable and controllable;

(d) securing value for money from quality legal services; and

(e) establishing the most effective and efficient administrative structure to deliver legal services.

12. The key proposals set out in the Consultation Paper were:

(a) establishing a new Administrative Body (the Legal Services Commission);

(b) establishing capped budgets for legal services (other than in criminal matters);

(c) securing the services of quality providers at best value for money prices; and

(d) ensuring that the most appropriate and cost effective solutions are available to the public.

13. Following consultation the Government published a Decisions Paper "The Way Ahead" [CM 4849] in September 2000. The Government stated that the approach set out in the Decisions Paper would provide a modern, transparent and accountable administrative structure to deliver quality assured legal services to all the people of Northern Ireland.

14. The Decisions Paper indicates that, within the context of the reform programme, the Government is determined to take effective control of the levels of public funding allocated to the provision of legal services, and to ensure that the funds available are targeted on meeting the real needs of the most vulnerable in society.

15. The third strand of the approach outlined in the Decisions Paper was the development of mechanisms to ensure that the taxpayer can be assured that the money spent on legal services is spent on a high quality service.

ACCESS TO JUSTICE (NORTHERN IRELAND) ORDER 2002

16. The current statutory basis for the provision and administration of legal aid is set out in the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 [SI 1981/228 (NI 8)] ("the 1981 Order").

17. The Access to Justice (Northern Ireland) Order 2002 (the "proposed Order") provides a modern basis for the provision and administration of legal services.

18. This sets out the title of the Order as the Access to Justice (Northern Ireland) Order 2002.

19. Provides for the setting up of the Northern Ireland Legal Services Commission (referred to as "the Commission"). The Commission shall exercise its functions for the purpose of -

(a) securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to civil legal services that effectively meet their needs, and of promoting the availability to individuals for such services, and

(b) securing that individuals involved in criminal investigations or relevant proceedings have access to such criminal defence services as the interests of justice require.

20. The Commission shall consist of -

(a) a member who is to chair it, and

(b) not fewer than six, nor more than ten, other members.

21. In appointing persons to be members of the Commission the Lord Chancellor shall have regard to the desirability of securing that the Commission includes members who (between them) have experience in or knowledge of -

(a) the provision of services which the Commission can fund as civil legal services or criminal defence services;

(b) the work of the courts;

(c) consumer affairs;

(d) social conditions; and

(e) management.

22. Provides that the Lord Chancellor may by order establish in place of the Commission two bodies -

(a) one to have functions relating to civil legal services, and

(b) the other to have functions relating to criminal defence services.

23. Provides for the Commission to -

(a) inform itself about the need for and the provision of civil legal services and criminal defence services and the quality of the services provided;

(b) plan towards meeting the need by the performance by the Commission of its functions;

(c) co-operate with such authorities and other bodies and persons as it considers appropriate in facilitating the planning of what can be done by them to meet that need by the use of any resources available to them;

(d) notify the Lord Chancellor of what it has done under this Article.

24. In particular, the Commission shall have power -

(a) to enter into any contract;

(b) to make grants (with or without conditions);

(c) to make loans;

(d) to invest money;

(e) to promote or assist in the promotion of publicity relating to its functions;

(f) to undertake any inquiry or investigation which it may consider appropriate in relation to the discharge of any of its functions, and

(g) to give to the Lord Chancellor any advice which it may consider appropriate in relation to matters concerning any of its functions.

25. The Lord Chancellor may give guidance to the Commission as to the manner in which he considers it should discharge its functions and the Commission shall take into account any such guidance.

26. The Commission may not fund civil legal or criminal defence services relating to any law other than that of Northern Ireland, unless any such law is relevant for determining any issue relating to the law of Northern Ireland.

27. For the purposes of this Order "civil legal services" means advice, assistance and representation, other than advice, assistance or representation which the Commission is required to fund as criminal defence services.

28. The Commission shall establish and maintain a fund from which it shall fund civil legal services.

The Lord Chancellor -

(a) shall pay to the Commission the sums which he determine are appropriate for the funding of civil legal services by the Commission, and

(b) may determine the manner in which and times at which the sums are to be paid to the Commission and may impose conditions on the payment of the sums.

29. The Commission shall set priorities in its funding of civil legal services, and the priorities shall be set -

(a) in accordance with any directions given by the Lord Chancellor, and

(b) after taking into account the need for such services,

30. The Commission may fund civil legal services by -

(a) entering into contracts with persons or bodies for the provision of services by them;

(b) making payments to persons or bodies in respect of the provision of services by them;

(c) making grants or loans to persons or bodies to enable them to provide, or facilitate the provision of services;

(d) establishing and maintaining bodies to provide, or facilitate the provision of services;

(e) making grants or loans to individuals to enable them to obtain services;

(f) itself providing services; or

(g) doing anything else which it considers appropriate for funding services.

31. The Commission may only fund civil legal services for an individual if his financial resources are such that, under regulations, he is an individual for whom they may be so funded.

32. The services which the Commission may fund as civil legal services are those which the Commission considers appropriate (subject to Article 12(5) and the priorities set under Article 12(1).

33. The Commission shall prepare a code setting out the criteria according to which any decision is to be taken as to -

(a) whether to fund (or continue to fund) civil legal services for an individual for whom they may be so funded; and

(b) if so, what services are to be funded for him.

34. This section outlines the procedure to be carried out after preparation of the code or a revised version of the code.

35. An individual for whom civil legal services are funded by the Commission shall not be required to make any payment in respect of the services except where regulations otherwise provide.

36. The Commission makes provision for costs orders against assisted parties and the awarding of costs of successful unassisted parties.

37. Subject to Articles 18 and 19, regulations may make provision about costs in relation to proceedings in relation to which, or to a part of which, civil legal services are funded for any of the parties by the Commission.

38. The Commission shall establish and maintain a fund from which it shall fund -

(a) advice and assistance in accordance with Article 23, and

(b) representation in accordance with Articles 24 and 30.

39. The Commission shall prepare a code of conduct to be observed by employees of the Commission, and employees of any body established and maintained by the Commission, in the provision of criminal defence services.

40. The code shall include -

(a) duties imposed in accordance with any scheme made by the Commission under section 75 of the Northern Ireland Act 1998(b);

(b) duties to protect the interests of the individuals for whom criminal defence services are provided;

(c) duties to the court;

(d) duties to avoid conflicts of interest; and

(e) duties of confidentiality;

(f) and duties on employees who are members of a professional body to comply with the rules of the body.

41. The Commission may from time to time prepare a revised version of the code.

42. Before preparing or revising the code the Commission shall consult the Law Society and the General Council of the Bar of Northern Ireland and such other bodies or persons as it considers appropriate.

43. After preparing the code or a revised version of the code the Commission shall send a copy to the Lord Chancellor.

44. If he approves it he shall lay it before each House of Parliament.

45. The Commission shall publish -

(a) the code as first approved by the Lord Chancellor, and

(b) where he approves a revised version, either the revisions or the revised code as appropriate.

46. The code, and any revised version of the code, shall not come into force until it has been approved by a resolution of each House of Parliament.

47. The Commission shall fund such advice and assistance as it considers appropriate.

48. The Commission shall fund representation to which an individual has been granted a right in accordance with Article 26 or 27.

49. This sets out the circumstances in which the right to representation may be granted.

50. A court before which any relevant proceedings take place, or are to take place, has power to grant a right to representation in respect of those proceedings except in such circumstances as may be prescribed.

51. The Commission shall have power to grant rights to representation in respect of any one or more of the descriptions of proceedings prescribed under Article 2(4)(g), and to withdraw any rights to representation granted by it.

52. Except where regulations otherwise provide, an appeal shall lie to such court or other person or body as may be prescribed against a decision -

(a) to refuse a right to representation in respect of relevant proceedings;

(b) to impose or vary a limitation on such a right;

(c) not to extend such a right; or

(d) to withdraw such a right.

53. Any question as to whether a right to representation should be granted or extended, or whether a limitation on representation should be imposed, varied or removed, shall be determined according to the interests of justice.

54. An individual who has been granted a right to representation in accordance with Article 26 or 27 may, in accordance with any determination of the Commission under paragraph (2) and subject to Article 36, select any representative or representatives willing to act for him; and, where he does, the Commission is to comply with the duty imposed by Article 24 by funding representation by the selected representative or representatives.

55. Regulations shall make provision for the review, in prescribed circumstances, of determinations by the Commission under Article 30(2).

56. (1) An individual for whom criminal defence services are funded by the Commission shall not be required to make any payment in respect of the services except where paragraph (2) applies.

(2) Where representation for an individual in respect of relevant proceedings in any court is funded by the Committee under Article 24, the court may, subject to regulations under paragraph (3), make an order requiring him to pay some or all of the cost of any representation so funded for him (in proceedings in that or any other court).

57. Information which is furnished to the Commission or any court, tribunal or other person or body on whom functions are imposed or conferred by or under this Part and in connection with the case of an individual seeking or receiving civil legal services or criminal defence services funded by the Commission shall not be disclosed except as permitted by regulations.

58. Any person who intentionally fails to comply with any requirement imposed by virtue of this Part as to the information to be furnished, or in furnishing information required by virtue of this Part makes any statement or representation which he knows or believes to be false, shall be guilty of an offence.

59. Except as expressly provided by regulations, the fact that civil legal services or criminal defence services provided for an individual are or could be funded by the Commission, shall not affect -

(a) the relationship between that individual and the person by whom they are provided or any privilege arising out of that relationship; or

(b) any right which that individual may have to be indemnified, in respect of expenses incurred by him, by any other person.

60. The Commission shall not fund any civil legal services or criminal defence services provided by a solicitor who is for the time being prohibited from providing such services by an order under Article 51B(1) or (3) of the Solicitors (Northern Ireland) Order 1976(a).

61. The Commission shall not fund any civil legal services or criminal defence services provided by a barrister if it determines that, arising out of his conduct when providing or selected to provide such services or his professional conduct generally, there is good reason for refusing, temporarily or permanently, to fund such services provided by him.

62. Regulations may make provision for the registration by the Commission of persons who are eligible to provide civil legal services or criminal defence services funded by the Commission.

63. Interpretation of Part III

"Advocacy services" means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right of audience in relation to any proceedings, or contemplated proceedings, to provide;

"litigation services" means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to any proceedings, or contemplated proceedings, to provide;

"proceedings" includes any sort of proceedings for resolving disputes (and not just proceedings in a court), whether commenced or contemplated;

"a right of audience" means the right to appear before and address a court including the right to call and examine witnesses;

"a right to conduct litigation" means the right -

(a) to issue proceedings before any court; and

(b) to perform any ancillary functions in relation to proceedings (such as entering appearances to actions).

64. A conditional fee agreement which satisfies all of the conditions applicable to it by virtue of this Article shall not be unenforceable by reason only of its being a conditional fee agreement; but (subject to paragraph (5)) any other conditional fee agreement shall be unenforceable.

65. The proceedings which cannot be the subject of an enforceable conditional fee agreement are criminal proceedings and family proceedings.

66. A litigation funding agreement which satisfies all of the conditions applicable to it by virtue of this Article shall not be unenforceable by reason only of its being a litigation funding agreement.

67. A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of any amount payable under a litigation funding agreement.

68. Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy.

69. This Article applies where a body of a prescribed description undertakes to meet (in accordance with arrangements satisfying prescribed conditions) liabilities which members of the body or other persons who are parties to proceedings may incur to pay the costs of other parties to the proceedings.

70. This Order shall bind the Crown to the full extent authorised or permitted by the constitutional laws of Northern Ireland.

71. Any direction given by the Lord Chancellor to the Commission under Part II may be varied or revoked.

72. The Lord Chancellor is empowered to make remuneration orders, setting out a range of fees or mechanisms for calculating fees, which the Commission will implement and observe when funding both criminal and civil services. Remuneration orders could for example set:

• all-inclusive standard fees;
• scales of fees;
• hourly rates;
• rates for preparation and travelling time; and
• methods for determining fees in exceptional cases.

73. In making a remuneration order, the Lord Chancellor must have regard 'among the matters which are relevant, to-

(a) the time and skill which the provision of services of the description to which the order relates requires;

(b) the number and general level of competence of persons providing those services;

(c) the cost to public funds of any provision made by the regulations; and

(d) the need to secure value for money.'

74. The Lord Chancellor is not required to consider other factors - such as existing remuneration levels or market rates.

75. The Lord Chancellor may by order make such transitional provisions and savings as he considers appropriate in connection with the coming into operation of any provision of this Order.

76. The statutory provisions specified in Schedule 4 shall be amended as specified in that Schedule.

77. The statutory provisions specified in Schedule 5 are hereby repealed to the extent specified in column 3 of that Schedule.

78. During the Committee's deliberations on the proposals for reform of the legal aid system in Northern Ireland, members considered a wide variety of issues. The comments of the Committee are set out below under the following headings:-

• General comments;
• Establishment of the Legal Service Commission;
• The provision of Civil Legal Services;
• The provision of Criminal Legal Services;
• Quality Standards; and
• Other Funding of Legal Services.

79. The Committee welcomed the opportunity to consider the proposals for reform of the legal aid system in Northern Ireland and recognised those proposals as being of major significance for many years ahead. Given the importance of these proposals, the Committee considered that a full, proper and meaningful consultation would be of vital importance, as the proposals were going to have an impact on the future of legal aid provision.

80. The Committee expressed concern about the period of time allocated to consider the Draft Access to Justice (Northern Ireland) Order 2002, although this was within the sixty days allowed within Section 85 of the Northern Ireland Act 1998. Due to the wide ranging and complex areas for consideration the Committee was of the opinion that there is a need for on-going scrutiny of both the draft Order and any subsequent implementation plan.

81. The Committee considered issues surrounding the establishment of the new Legal Services Commission. The new Legal Services Commission will be responsible for the administration of the public funding of legal services; making new provision for the public funding of civil legal services; making new provision for the public funding of criminal legal services; providing for the registration of those seeking to provide publicly funded legal services; and making provision for alternative methods of paying for legal services, i.e. conditional fee arrangements and litigation fund agreements.

82. The Committee agreed with the principle of establishing an impartial Legal Services Commission which removes the administration of legal aid from the Law Society, a body whose members benefit from the current provision of legal aid.

83. In scrutinising the legislation the Committee formed the view that many of the proposed major areas were seen as contingent legislation i.e. to provide for 'fall back' positions in the event that the proposals do not go according to plan. The Committee had serious reservations about this procedure. The proposal to allow for the Legal Services Commission to implement much of the detail, without many of the areas being clearly defined on the face of the legislation, is a cause for concern.

84. However, the Committee noted evidence from the Law Society of Northern Ireland where they stated "we do have considerable reservations as to whether another Commission of this type or size is necessary or appropriate for the administration of legal aid in Northern Ireland." The Committee expressed concern over the lack of detail on the projected setting up and running costs for the Legal Services Commission.

85. Under existing legislation, the Law Society administers legal aid so as to provide advice, assistance and representation to parties in certain civil proceedings, subject to a merits test, and in some cases a means test.

86. Civil legal aid is at present available under three schemes. The Lord Chancellor's Department has described them and the means test as follows:

Legal advice and assistance, otherwise known as the Green Form Scheme, is intended to cover preliminary advice and assistance from a solicitor including advice, writing letters, entering into negotiations, obtaining an opinion and the preparation of a tribunal case. To qualify for this advice a question of Northern Ireland law must be involved. Advice and assistance stops short of representation in court and it cannot be obtained when a civil aid certificate has been issued in connection with the matter. Responsibility for making the financial assessment of eligibility for Green Form advice falls to the solicitor providing the advice.

Assistance by way of representation (ABWOR) covers the preparation and presentation of civil cases in the Magistrates' Court. These cases include separation, maintenance and paternity proceedings and certain work in respect of children. It is also available to patients who appear before Mental Health Review Tribunals. A solicitor requires approval from the Legal Aid Department or the court before assistance under ABWOR can be given.

87. The draft Order proposes to deliver civil legal services through advice, assistance and representation. Accordingly, the Legal Services Commission will establish and maintain a new fund to provide civil legal services. The Lord Chancellor will pay such sums into the fund as he may determine and may impose conditions upon those payments. The fund will be capped.

88. The Legal Services Commission will prepare a Funding Code which will set out the criteria for determining whether civil legal services should be provided in a particular case. The Code will also set out the procedures for making applications for funding. The factors which the Legal Services Commission must consider when preparing the Code are:

'(a) the likely cost of funding the services and the benefit which may be obtained by their being provided,

(b) the availability of sums in the fund established under Article 11(1) for funding civil legal services and (having regard to present and likely future demands on that fund) the appropriateness of applying them to fund the services,

(c) the importance of the matters in relation to which the services would be provided for the individual,

(d) the availability to the individual of services not funded by the Commission and the likelihood of his being able to avail himself of them,

(e) if the services are sought by the individual in relation to a dispute, the prospects of his success in the dispute,

(f) the conduct of the individual in connection with civil legal services funded by the Commission (or an application for funding) or in, or in connection with, any proceedings,

(g) the public interest, and

(h) such other factors as the Lord Chancellor may by order require the Commission to consider.'

89. The Committee raised concerns regarding the level at which the fund will be capped, how that level will be determined and what process will be used to review the cap. Indeed, in the evidence provided by the Northern Ireland Association of Citizen Advice Bureaux (NIACAB), a strong case was made for the retention of ABWOR as an independent service. The Committee noted that, at present, legal aid is only payable in respect of time spent in preparing for a tribunal but not any representation at an actual tribunal. The statistical evidence set out in Appendix 4 displays the value of representation at tribunals. The Committee supported the extension of representation in actual Tribunals, it also noted the recent reforms in Scotland whereby Civil Legal Aid can be made available in some situations.

90. The Committee took evidence from the NIACAB. The NIACAB currently deal with approximately 200,000 clients annually. However, they estimate the level of unmet need to be in the region of an additional 200,000 clients. The Committee agreed that any funding set aside by the Legal Services Commission will have to take account of the needs of the community and voluntary sector.

91. The Committee noted the concerns of the Northern Ireland Human Rights Commission which stated that "exclusion of election petitions from the range of available civil legal services would mean that important electoral rights (protected by Article 3 of Protocol 1 to the European Convention on Human Rights) could not be vindicated with the assistance of publicly-funded legal services." The Committee supported the view of the Northern Ireland Human Rights Commission.

92. The Legal Services Commission will prepare a Funding Code which will set out the criteria for determining whether civil legal services should be provided in a particular case. The Code will also set out the procedures for making applications for funding. The factors which the Legal Services Commission must consider when preparing the Code are:

93. The Committee considered the proposed Funding Code and set of procedures which will apply to the code. The Committee, and a number of witnesses, expressed concern on the issue of the prioritisation of cases which will be covered by the fund. The Committee would welcome prior consultation on any proposals for prioritisation of clients in this area.

94. Under current legislation, Criminal Legal Aid is available to individuals who:

• are charged with an offence,
• appear before a court, or
• are brought before a court to be dealt with,

subject to the applicant satisfying the court that he has insufficient means to fund his own defence and that it was in the interests of justice that he should receive legal aid. The draft Order proposes to replace this scheme.

95. Accordingly, the Legal Services Commission will establish and maintain a fund to provide criminal legal services. The Lord Chancellor will pay such sums into the fund as he may determine and to impose conditions upon those payments. Unlike the civil fund, the criminal fund will not be capped.

96. The Committee heard evidence from the General Council of the Bar of Northern Ireland. In the evidence the General Council of the Bar of Northern Ireland stated that the level of representation for the client, should be determined by the Court, and not by the Commission. Only the Court can take an informed and objective view of the level of representation required by the issues, substance, seriousness and complexity of an individual case.

97. The Committee concurred with the General Council of the Bar of Northern Ireland's view that Article 30 of the draft Order is wholly restrictive of access to justice.

98. The Legal Services Commission is required to prepare a Criminal Defence Service Code of Conduct. It applies to employees of the Commission (such as salaried defenders), and employees of any body established and maintained by the Commission, in the provision of criminal defence services.

99. The Code is to be prepared or revised only on consultation with the Law Society and the General Council of the Bar of Northern Ireland, and such other bodies or persons as the Legal Services Commission considers appropriate. It must be approved by both Houses of Parliament.

100. The Lord Chancellor may, by regulation, establish a Registration Scheme and Code of Practice. Only firms and individuals that are registered, comply with the Code of Practice and satisfy quality mechanisms and monitoring will be entitled to provide publicly funded legal services.

101. The Committee noted evidence from the Law Society of Northern Ireland in which they stated "no-one would wish to argue with the proposition that legal services must be of consistently high quality." The Committee supports this view, however, it requested further detail on the standards of quality which will be imposed and how these standards will be informed both against firms and individuals.

102. The draft Order proposes providing a statutory basis for Conditional Fee Agreements. Conditional Fee Agreements, also known as 'no-win-no fee' agreements, are intended to allow lawyers and clients to share both the risks and possible gains of litigation. They allow lawyers to

'undertake cases on the understanding that if a case is lost, the lawyer will not receive all or part of the usual fees or expenses. Where the agreement provides for enhanced fees, when the case is won, the lawyer is entitled to an uplift in addition to the usual fee. This is normally calculated as a percentage of his normal costs according to the level of risk. In this way the lawyer is rewarded for the risk taken in proceeding with a case for which he may not be paid. This definition covers recent developments in common law which recognise agreements to work for less than normal fees, but do not provide for enhanced fees...

103. Accordingly, the draft Order provides that enforceable Conditional Fee Agreements can be entered into between lawyers and their clients. They cannot be employed in criminal or family proceedings. The Legal Services Commission would not be involved in Conditional Fee Agreements - it is an entirely private agreement between lawyer and client.

104. The Lord Chancellor, on consultation with the Law Society, the General Council of the Bar of Northern Ireland and others, may by regulation define the proceedings in which such fees are to be permitted and prescribe their maximum size.

105. The Committee considered evidence from the Law Society of Northern Ireland and the General Council of the Bar of Northern Ireland. The General Council of the Bar of Northern Ireland stated - "Conditional fees should not be introduced into Northern Ireland until such time has passed that would allow consideration of the advantages and disadvantages of their use in England and Wales and a study to be made to assess whether they are required in Northern Ireland." The Committee accepted the need for further research into Conditional Fee Arrangements (CFA).

106. The draft Order also provides a statutory basis for Litigation Funding Agreements. A Litigation Funding Agreement is made between an individual and those representing a privately established fund - not with the lawyer taking the case, as occurs with Conditional Fee Agreements. As the Explanatory Document explains:

107. The Lord Chancellor is empowered to make Remuneration Orders, setting out a range of fees or mechanisms for calculating fees, which the Legal Services Commission will implement and observe when funding both criminal and civil services. Remuneration orders could for example set:

• all-inclusive standard fees;
• scales of fees;
• hourly rates;
• rates for preparation and travelling time; and
• methods for determining fees in exceptional cases.

108. In making a Remuneration Order, the Lord Chancellor must have regard 'among the matters which are relevant, to-

109. The Committee considered a written submission from the Law Society of Northern Ireland in which it criticised the proposals for privately funded litigation arrangements. It has put forward proposals for a publicly funded Contingency Legal Aid Fund (CLAF) which could be administered on a not for profit basis. The Committee recognised that there may be some merit in this proposal and urged that it be given further consideration.

110. The Committee recognised that the reform of the legal aid system is both welcome and overdue. However, they adjudged that the provision of a short period for consultation, on the Draft Order in Council, in an important and complex area, is wholly inappropriate. The Committee noted that large sections of the Order are at best aspirational and at worst lacking in any degree of detail. The absence of a timebound implementation plan, with a heavy reliance on the proposed new Legal Services Commission for the delivery of many facets of the new system, caused the Committee a fair degree of concern. The Committee would welcome further extensive consultation, with all interested parties, before the laying of the Order in Council.

Attendees: Mr Tony Logue, Committee Clerk
Ms Hilary Bogle
Ms Pauline Innes

Apologies: Mrs Eileen Bell MLA
Mr Ian Paisley Jnr MLA
Mr Danny O'Connor MLA
Mr George Savage MLA

The apologies were noted.

The Clerk called for nominations for the position of Committee Chairperson. Mr Maginness proposed that: Mr Campbell be the Chairperson of this Committee. Mr Shipley Dalton seconded this and the nomination was accepted.

On there being no further nominations the Clerk put the question without debate.

Resolved, that Mr Campbell, being the only candidate proposed, be Chairperson of this Committee.

The Chairperson thanked members for their support and sought nominations for the position of Committee Deputy Chairperson. Professor McWilliams proposed that: Mr Maginness be the Deputy Chairperson of this Committee. Mr Shipley Dalton seconded this and the nomination was accepted.

On there being no further nominations the Chairperson put the question without debate.

Resolved, that Mr Maginness being the only candidate proposed, be Deputy Chairperson of this Committee.

Mr Shipley Dalton, Mr Maginness and Mr Weir declared that they were members of the Bar.

The Chairperson referred members to a memorandum from the Committee Clerk on the procedures of the Committee contained in their briefing papers.

Resolved, Witnesses-the Committee agreed to take evidence from relevant bodies as part of its proceedings.

Voting-the Committee agreed that in the absence of consensus, simple majority would determine all decisions.

Minutes of Evidence-the Committee agreed that in the event that any members are unable to attend an evidence session, the uncorrected Minutes of Evidence would be copied to those members for their information.

Public meetings-the Committee agreed that it would hold all evidence sessions in public.

Deputies-the Committee agreed to use deputies. Mr Weir deputised for Mr Paisley Jnr for the remainder of the meeting.

The Committee noted a memorandum from the Committee Clerk setting out a proposed forward work programme.

The Committee agreed to invite the following bodies to give evidence-

Lord Chancellor's Department;

Northern Ireland Human Rights Commission:

Northern Ireland Association of Citizen Advice Bureaux;

The Law Society of Northern Ireland; and

The General Council of the Bar of Northern Ireland.

It was further agreed that any further nominations to invite bodies to give evidence would be considered at the next meeting of the Committee and that a Press Release should be issued seeking written submissions to the Committee by any interested parties.

Members noted the contents of the draft Access to Justice (Northern Ireland) Order 2002 together with the Explanatory Memorandum, the Decisions Paper "The Way Ahead", the Consultation Paper "Public Benefit and the Public Purse", the Explanatory Document and a briefing paper from Northern Ireland Assembly Research and Library Services.

Members conducted an initial analysis of the proposal for a draft Order in Council with assistance from the Northern Ireland Assembly Legal Advisor Service.

No other matters were raised.

The Committee agreed that it would next meet on Tuesday, 11 June 2002 at 10.30am in room 144 to hear evidence from the Northern Ireland Office and the Northern Ireland Human Rights Commission.

Mr Gregory Campbell MLA
Chairperson, Ad Hoc Committee

11 June, 2002

Attendees: Mr Tony Logue, Committee Clerk
Ms Hilary Bogle
Ms Pauline Innes

Apologies: Mr Gregory Campbell MLA
Mr Alban Maginness MLA

In the absence of the Chairperson, the Clerk called for nominations for the position of co-opted Chairperson. Mr Ervine proposed that : Ms Lewsley be the co-opted Chairperson for this meeting. Mr Weir seconded this and the nomination was accepted.

On their being no further nominations the Clerk put the question without debate.

Resolved, that Ms Lewsley, being the only candidate proposed, be the Chairperson of this Committee meeting.

The apologies were noted

Resolved, that the draft Minuts of Proceedings for Thursday, 6 June be agreed.

There were no matters arising.

Members heard evidence from the Lord Chancellor's Department on their role under the proposed new draft Access to Justice (Northern Ireland) Order 2002. Representing the Lord Chancellor's Department were -

• Mr Alan Hunter, Director of Legal Aid
• Mr Paul Andrews, Business Manager, Order in Council Implementation Team

No other matters were raised.

The Committee agreed that it would next meet on Thursday, 13 June 2002, when it would hear evidence from the Northern Ireland Association of Citizen Advice Bureaux and the Northern Ireland Human Rights Commission.

Ms Patricia Lewsley MLA
Acting Chairperson, Ad Hoc Committee

13 June, 2002

Attendees: Mr Tony Logue, Committee Clerk
Ms Hilary Bogle
Ms Pauline Innes

There were no apoligies.

Resolved, That the draft Minuts of Proceedings for Tuesday, 11 be agreed.

Members noted the contents of the Committee's Public Notice on the public consultation on the draft Access to Justice (Northern Ireland) Order 2002.

Members heard evidence from the Northern Ireland Association of Citizen Advice Bureaux on their role under the proposed new draft Access to Justice (Northern Ireland) Order 2002. The Northern Ireland Association of Citizen Advice Bureaux was represented by Mr Derek Alcorn, Chief Executive.

On behalf of the Committee, the Chairperson welcomed Ms Tanya Monforte and Mr Shaun Stacey, Harvard Law School who sat in the public gallery to observe the proceedings of the Committee.

Members heard evidence from the Northern Ireland Human Rights Commission on their role under the proposed new draft Access to Justice (Northern Ireland) Order 2002. The Northern Ireland Human Rights Association was represented by Professor Brice Dickson, Chief Commissioner.

No other matters were raised.

The Committee agreed that it would next meet on Monday, 17 June 2002, when it would hear evidence from the Law Society of Northern Ireland and the General Council of the Bar of Northern Ireland.

Mr Gregory Campbell MLA
Chairperson, Ad Hoc Committee

17 June, 2002

Attendees: Mr Tony Logue, Committee Clerk
Ms Hilary Bogle
Ms Pauline Innes

Apologies: Mr David Ervine MLA
Mr Alban Maginness MLA
Mr Ian Paisley Jnr MLA

The apologies were noted.

Resolved, That the draft Minuts of Proceedings for Tuesday, 13 2002 be agreed.

There were no matters arising.

Members noted the contents of a written brief from the Law Society of Northern Ireland on the proposed Draft Access to Justice (Northern Ireland ) Order 2002.

0.1

Members heard evidence from the Law Society of Northern Ireland on their role under the proposed new Draft Access to Justice (Northern Ireland) Order 2002. The Law Society of Northern Ireland was represented by Mr Joe Donnelly, Junior Vice President, Mr Paddy Kinney, Law Society Representative, Mr Barra McGrory, Law Society Representative and Mr John Bailie, Chief Executive.

0.2

It was agreed that the Committee would adjourn until 4.00pm when evidence would be taken from the General Council of the Bar of Northern Ireland. As the Chairperson would be unable to attend, it was further agreed to elect a co-opted Chairperson.

In the absence of the Chairperson, the Clerk called for nominations for the position of co-opted Chairperson. Professor McWilliams proposed that Ms Lewsley be the co-opted Chairperson for this meeting. Dr Hendron seconded this and the nomination was accepted.

On their being no further nominations the Clerk put the question without debate.

Resolved, that Ms Lewsley, being the only candidate proposed, be the Chairperson of this Committee meeting.

Members noted the contents of a written brief from the General Council of the Bar of Northern Ireland on the proposed Draft Access to Justice (Northern Ireland) Order 2002.

Members heard evidence from the General Council of the Bar of Northern Ireland on their role under the proposed new draft Access to Justice (Northern Ireland) Order 2002. The General Council of the Bar of Northern Ireland was represented by Mr Stuart Beattie QC, Mr David Hunter QC and Mr Jim McNulty QC.

No other matters were raised.

The Committee agreed that the next meeting would take place on Monday 24 June 2002 at 1.30pm to consider a draft Report of the Committee's proceedings.

Ms Patricia Lewsley MLA
Acting Chairperson, Ad Hoc Committee

24 June, 2002

Attendees: Mr Tony Logue, Committee Clerk
Ms Hilary Bogle
Ms Pauline Innes

The apology was noted.

Resolved, that the draft Minutes of Proceedings for Monday, 17 June 2002 be agreed.

There were no matters arising.

Members noted the contents of further written submissions received from the Northern Ireland Court Service and the Law Society of Northern Ireland. It was agreed that these further written submissions would be appended to the Report.

Members noted a draft Report on the proceedings of the Committee tabled at the meeting. Following debate the Report was agreed as amended.

No other matters were raised.

The Chairperson proposed that he have leave of the Committee to approve the draft Minutes of Proceedings of today's meeting.

Resolved, that the Chairperson shall have leave to approve the Minutes of Proceedings.

The Committee agreed that it would not hold any further meetings.

24 June, 2002

Mr Alan Hunter, Director of Legal Aid

Mr Paul Andrews, Business Manager, Order in Council Implementation Team

Mr Derek Alcorn, Chief Executive

Professor Brice Dickson, Chief Commissioner

Mr Joe Donnelly, Junior Vice-President, Law Society

Mr John Bailie, Chef Executive, Law Society

Mr Paddy Kinney, Law Society Representative

Mr Barra McGrory, Law Society Representative

Mr Stuart Beattie, QC

Mr David Hunter, QC

Mr Jim McNulty, QC

"(2) In settling the criteria to be set out in the code the Commission shall consider the extent to which they ought to reflect the following factors -

(f) the conduct of the individual in connection with civil legal services funded by the Commission (or an application for funding) or in, or in connection with, any proceedings".

117.

What does that mean?

118.

Mr Hunter: It is designed to address situations where, for example, a privately-funded client can decide whether to put personal funds on the line to pursue a case. At present, a legally-aided client does not have to make such an assessment because if he meets the merits test - in other words, if there is a reasonable chance of winning the case - and if he meets the financial test, legal aid is an entitlement. Unless there is a change in circumstances, his costs will continue to be met. We are moving increasingly to alternative dispute resolution and other types of forums that might be more appropriate for resolving individual disputes. It would be legitimate for the commission to take into account whether those other options have been pursued and, if they had, the conduct of the parties in those circumstances. That may not be the only relevant circumstance. The article takes into account the new types of proceedings and how people have conducted their affairs and if they were prepared to put their own money on the line in that situation.

119.

Mr Ervine: "Conduct of the individual" is a broad remit for a commission to consider. It is not tight enough; I do not fully understand it, and it can be whatever the commission wants it to be.

120.

The Acting Chairperson: I am aware of the time, but are there more questions.

121.

Mr J Kelly: It is important to take one or two more questions as this is a serious matter that will affect many individuals. At the outset -

122.

The Acting Chairperson: Will you put your question?

123.

Mr J Kelly: I will put my question if we could have less fun from the gallery, Madam Chairperson. The law commission is going to be the engine that drives the reforms. Where will the interviewing panel for the commission be drawn from? The notion has been put abroad that the present system has been abused. Is the reform process predicated on the notion of abuse, or is it merely a way of tailoring the present system to suit needs?

124.

You say that people should pay what they can reasonably afford towards the cost of publicly funded legal services. What does that mean? If someone is applying for legal aid, it is obvious that they cannot afford to pay.

125.

Mr Hunter: No decisions have been made about how the interview panel will be drawn up, who will sit on it or where the individuals will be drawn from.

126.

To monitor the level of system abuse the Law Society examined a proportion of forms returned by people claiming to be entitled to benefits that automatically entitled them to free legal advice. The Law Society introduced a more stringent checking mechanism with the Social Security Agency to validate that type of information. As a result of that, the qualification was lifted the following year. There is evidence to suggest that there are some systemic weaknesses, but that is a matter of administration that we and the Law Society are working closely to resolve.

127.

Mr J Kelly: Is it also true that people are ignorant about how to fill out the form?

128.

Mr Hunter: Yes. It is systemic to that extent.

129.

Ms McWilliams: I am trying to work out some of the timescales in your paper. There are a lot of question marks over what will or what will not end up in the final legislation. There is a piece in your paper about a private fund that could be established, but it then states that there will be ongoing research work over the summer. I am concerned that there is no answer on that, but there already is draft legislation.

130.

A paper that the Committee received from the Northern Ireland Court Service states that the salaried lawyers might come from the commission or from a body established to deliver publicly funded legal services. It is clear that that decision has not been made yet either. It is a bit late in the day for there to be outstanding decisions on such matters given that the Committee is considering the legislation now.

131.

Mr Hunter: The intention, subject to consultation, is that those factors will be included in the legislation and will be taken forward as part of the implementation with the legal services commission. Those decisions will be made on the back of research with the benefit of advice from the commission operating the scheme.

132.

Ms McWilliams: Given that the Lord Chancellor's Department knew that the legislation was coming on board, would it not have been helpful to have had that research concluded before the Committee sat?

133.

Mr Hunter: A working group was established to look at the proposal for a privately or publicly funded fund as an option compared with conditional fees and no win, no fee agreements. Some research was carried out. It has emerged that the legislation will make provision to introduce no win, no fee agreements and to establish a privately funded fund. There may be situations in which some types of cases will be suitable for one type of funding, and others would be suitable for another. It is important that the commission has the powers to meet the expectations and requirements on it and to deliver high-quality legal services to the people here through various funding mechanisms.

134.

Ms McWilliams mentioned the option of employing lawyers in the publicly funded legal services field. That might arise in two situations - civil legal services and criminal defence services. In England, Scotland and Wales, pilots are being conducted in relation to public defender systems, and the option for that is being included for Northern Ireland. In cases of civil legal services there may be a need for lawyers to be employed directly or indirectly by the legal services commission to meet particular specialist areas or other areas of need. Those are methods of delivering legal services to people in a range of ways, and taking account of the research and the identified legal needs of people in the community.

135.

The powers will be there for the commission and the Government to ensure that high quality legal services are available to people where legal need is identified and where they need to be delivered.

136.

Mr Paisley Jnr: Your statement outlined that a registration and code of practice scheme should be introduced to regulate those who provide the services that the legal services commission will pay for. The material that the Committee received is vague about that - perhaps it is necessarily vague, but I feel that we need more meat on the bones. I am concerned that the code of practice will be been drawn up by lawyers, for lawyers, and will be scrutinised by lawyers. Although I am for self-examination, it requires a contrite heart. Some people say that lawyers' hearts may be too concrete to go down that road. What will the code of practice mean in real terms?

137.

Mr Hunter: I cannot say.

138.

Mr Paisley Jnr: That is the first straight answer that I have been given today and, although I may not welcome it, I appreciate it.

139.

Mr Hunter: We envisage that the legal services commission will engage with various consultees to draw up a relevant and appropriate code of practice for each type of legal work. In England and Wales, during the consultation process, prior to publication of the legislation, it was found that the focus for quality standards were disproportionate and would not be relevant in this jurisdiction.

140.

The Government are proposing that there will be a code of practice here, but we have not received notification of what it might include. However, Mr Paisley Jnr is right. It may include a range of matters, and we will want the commission to begin consultation and discussion. In all of its manifestations and with all of its experience - legal and non-legal - and with its knowledge of social and consumer affairs, the commission will influence the content of the code of practice.

141.

Mr Paisley Jnr: Is there a timescale for the implementation of the code of practice?

142.

Mr Hunter: During the commission's shadow period, we plan to discuss its priorities with its members. We do not think that the code of practice will be at the top of the agenda.

143.

Mr Paisley Jnr: The code of practice will be drawn up after the commission is established.

144.

Mr Hunter: Yes.

145.

The Acting Chairperson: Thank you for your presentation. The Committee may write to you for clarification on other issues, and members would appreciate if you could send the statistics that they asked for.

Mr Campbell (Chairperson)

Mr A Maginness (Deputy Chairperson)

Mrs E Bell

Mr Dalton

Mr J Kelly

Mr McLaughlin

Mr Paisley Jnr

Mr D Alcorn ) Northern Ireland Association of Citizens Advice Bureaux

146.

The Chairperson: Thank you for coming, Mr Alcorn.

147.

Mr Alcorn: I thank the Committee for the opportunity to speak today. My briefing is simple and gives a background to our organisation and its turnover, especially its casework profile, which in Northern Ireland is 55% social security. Other areas of work, such as money advice and debt, are included.

148.

There are some striking figures in respect of tribunal representation. Unfortunately, they are not quite up to date in our submission, but in the supplementary papers we have provided statistics that bring the figures up to December 2002. Thirteen thousand social security tribunals were held in Northern Ireland in the 12 months up to December 2001. For people who had representation and some form of independent advocacy, there was a split of almost fifty-fifty between successful and unsuccessful outcomes. Those without representation were unsuccessful in the ratio of 4:1. That is a graphic illustration of the impact of advocacy in a tribunal.

149.

Our submission has a section on new technology and some of the investments that European funding has enabled us to make. With regard to the draft Access to Justice (Northern Ireland) Order 2002, we have met with the Northern Ireland Court Service on several occasions over the past couple of years, as well as with a succession of Government ministers who came at different times to speak to the process. The Court Service has been good about keeping us informed and including us in meetings and so forth. For the purpose of the Order, legal advice is defined as advice given about the law, rather than as advice given by a legally qualified person. That allows the new legislation to fund advice services.

150.

Furthermore, I included in the submission an article that was published in 'Scope' magazine last month. It is a reasonable summary of the unmet need for advice in Northern Ireland, ranging across such areas as employment, debt, social security and employment rights. We see about 200,000 people a year and our experience is that a shortage of resources prevents us from meeting a huge need.

151.

Legal aid was reformed in England and Wales several years ago and our organisation there has some experience of that process. In the last financial year 227 local offices of the Citizens Advice Bureaux (CAB) had contracts with the Legal Services Commission to a value of £21·7 million. That is under half of the total number of Citizens Advice Bureaux in England and Wales; almost one in two, therefore, has a contract with the Legal Services Commission. Funding is also available for pilot court duty schemes, telephone advice lines and second-tier advice for various partnerships. The additional £21·7 million in the CAB network in England and Wales is significant, and appears to be about 5% of their overall spend on legal aid. The overall spend from the Community Legal Service fund is approximately £734 million. The so-called not-for-profit agencies' budget in that is approximately £5·5 million. Roughly 5% of the budget in England and Wales goes to voluntary advice agencies, and that might be a useful comparator.

152.

If a legal services commission were established, we should expect it to operate by contracts or service-level agreements; we are comfortable with that. We have some service-level agreements with district councils and health and social services trusts. The legal services commission must be assured that delivery is to the required standard and that it is enjoying a certain quality of service.

153.

In England and Wales, the Lord Chancellor's Department devised a Kitemark for the Community Legal Service, which is used by solicitors, voluntary organisations and other agencies in the network. It is difficult to know whether a legal services commission will set its own standards or adopt the Kitemark, but it is fair to anticipate that it will have to do something in that respect. We should be happy either way.

154.

The Court Service document outlines the four areas under civil legal services for consultation, advice and representation. The document is clearly aimed at limiting expenditure, and from what I have said about tribunals, especially those concerned with social security, you will appreciate that we feel that there is a great need to extend legal aid funding to representation at social security tribunals. The impact on the outcome of a tribunal is dramatic, as the statistics show.

155.

We have no comment on the exclusion of specific areas from the scope of advice and assistance. They are meant to protect core areas of the legal profession. Schedule 2 of the Order might usefully be amended to include advice on representation at tribunals.

156.

We have listed the areas for which we should like to see funding under civil legal services in the paper: social security, provision of legal advice, information, assistance regarding the regulations, proceedings in tribunals and in appeals to the commissioner, consumer issues and assistance and legal advice regarding debt. The difficulties that people have experienced in dealing with the financial services industry are huge, and we anticipate a considerable increase in debt cases when interest rates go up.

157.

I now come to social security debt, consumer issues and employment advice. Many people lack basic information about employment rights, not knowing that they are entitled to written terms and conditions. They have no contract and are told that they have four weeks' holiday entitlement only to be given two. They are told that, if they ask for the minimum wage again, they will be sacked. There is great ignorance in Northern Ireland about basic employment rights, and we receive huge numbers of queries on the issue. We should welcome funding in the area of employment law, social and economic rights - for example, the minimum wage - proceedings in employment tribunals and representation.

158.

Housing and the laws which apply to private sector housing and landlords as well as public sector housing are another area to which we have drawn attention in the short submission.

159.

That was a quick skip through the submission. In general we very much welcome the development, which will bring extra funding into the advice sector. We have no difficulty in principle with working to contract or a quality-assurance scheme. Indeed, we feel it will raise standards in the advice sector.

160.

The reform comes at a time when the Department of Enterprise, Trade and Investment is bringing forward a consumer strategy. It is also examining the provision of money for advice on debt, and we are keen that these developments should be co-ordinated by the Court Service, the Department of Enterprise, Trade and Investment and the voluntary activity unit, which is the lead unit for advice work. I am happy to take any questions.

161.

The Chairperson: Thank you for that thorough but brief presentation. Before I ask members if they have questions, I have one statistical query. The figures in your submission for the year to December 2000 and the year to December 2001 seem to show a substantial increase in cases and yet a reduction in those which were successful without representation. Should we draw any inference from that? If we looked back further than one year, should we see a trend, or is it only a blip?

162.

Mr Alcorn: Sorry. You are saying that there has been a reduction in cases -

163.

The Chairperson: The total number of appeal cases was 11,327 for the year ending December 2000. For the year to December 2001, that figure rose to almost 14,000, but the percentage of successful appeals without representation dropped from 22% to 18%. The numbers going forward are increasing, but at the same time the numbers that are successful without representation are falling.

164.

Mr Alcorn: The broad picture emerging from the two sets of figures is that, if you attend a tribunal without representation, you have a roughly 4:1 chance of success. The percentage ratio was 22% to 78% and is now 18% to 82%. The other statistics show that, if you are represented, the figure is almost 50% - you win one in every two cases. That speaks volumes about the need for funding.

165.

Mrs E Bell: I was on the board of management of the North Down Citizens Advice Bureaux. It always seemed to me that general CAB work in Northern Ireland complemented the work of Government. Sometimes it was work that the Civil Service or Government offices should have been doing regarding tribunal representations, filling in forms and so on. Has that been taken into account in the draft Access to Justice (Northern Ireland) Order 2002? If not, should it? It might earn your work more respect, because CAB work over the years has been concerned with advice services and nothing else.

166.

Mr Alcorn: The Department of Education report on adult literacy shows that there is 27% functional illiteracy in Northern Ireland. As I understand it, that means that people are barely able to use the 'Yellow Pages'. Much of our work comes from people who simply have difficulty in accessing services and reading forms, never mind being able to fill them in. There is a huge need for an interface with Government and mediation - ringing up on people's behalf and so on. That is the kind of work to which you refer.

167.

Legal aid spending in Northern Ireland is about £30 million a year. If 5% of the budget in England and Wales and the same percentage in Northern Ireland goes to the not-for-profit sector, that would imply a figure of £1·5 million, which is not a huge amount, but it would be significant for the advice sector. We cannot get any idea of how that would look, and in a sense it is being left to the establishment of the legal services commission. The Order empowers the commission to undertake research in areas of need and so on, so it is very difficult to second-guess -

168.

Mrs E Bell: Is that why you said that you might like more structure in the legal services commission's standards and procedures, and that they should be examined in more detail?

169.

Mr Alcorn: Yes. They will have to do everything that has been done in England and Wales. They must set their standards and find some way of proofing them. My concern is that the Department for Social Development should work with the Court Service and the Department of Enterprise, Trade and Investment to co-ordinate the matter, because it has an impact on the advice sector. The document contains a very firm commitment to addressing social need and targeting inequalities. I suppose the Order is not the place for it, but you get much more of a sense here that the Government wishes to direct resources at people in poverty than from the Order itself. Perhaps that is not appropriate for an Order. It is difficult to know what will happen until the commission is established, and then it will depend on the quality of the chairperson and chief executive. It is difficult to know how they will deal with issues of social need, marketing and research.

170.

Mr J Kelly: I welcome your point about advice being available to those in social security situations because, as some members will know, the other side would have a solicitor, which would leave us at a great disadvantage in arguing a constituent's case, so I support that.

171.

With regard to employment and unfair dismissals, there is much ignorance amongst those who have been dismissed and have no access to recourse. At a previous Committee meeting it was said that the engine for all of this would be the commission, so it is important that you mentioned that, as it is a wide remit requiring professional expertise. At that meeting it was mentioned that there is a high level of abuse within the legal aid system. Do you agree, or would you pass it off as a large degree of ignorance?

172.

Mr Alcorn: I am not sure what you mean by abuse.

173.

Mr J Kelly: I mean people fiddling the system.

174.

Mr Alcorn: The whole thrust of this is to limit expenditure, but we do not have any direct experience of how the system is abused because we do not access that.

175.

Mr J Kelly: Would you accept that there is a high degree of ignorance among people as to how they should, for example, fill in forms to access legal aid?

176.

Mr Alcorn: If private sector solicitors work on a social security tribunal, they will be able to claim money for time spent preparing the case or commissioning a medical report, but they cannot claim money for time spent at the tribunal, and sometimes they stop the work at the door. We supply both services, but we cannot claim any money. However, we have a specialist post that supports the work. For example, if you work in a Fermanagh Citizens Advice Bureaux and someone comes in with a problem with asthma, you will be able to ring someone in my office who will give you three or four previous decisions about asthma, which will have an impact on the case. The tribunal wants to see that you have done your homework, that there is no precedent and that you are not in on a wing and a prayer. It is a sophisticated process. Funding for that type of work is badly needed.

177.

Mr Dalton: Are you suggesting that there would be an advantage if the Committee recommended that the legal services commission give consideration to accrediting you as a contracted body to provide that kind of representation, rather than extending representation to the legal profession?

178.

Mr Alcorn: From the Government's point of view the expensive way would be to extend assistance by way of representation (ABWOR). The cost-effective way would be to fund posts in the advice sector that specialise in tribunal representation. We have a number of those, which are funded by the community fund. There are a number of solicitors' firms that are employing paralegals to represent in tribunals, and we think that they have one eye on the proposed reform because they could bid for contracts for that type of work. I am not saying that we should be singled out, but the commission will have to look at this and engage with us and other agencies in the process. The obligation in the Order is to conduct research to identify social need in Northern Ireland, identify the services that are available, and where there is a gap to fill it with an agency that needs funding. We are happy to line up in that process.

179.

Mr Dalton: Would that be a better way to provide representation at tribunals?

180.

Mr Alcorn: Yes, it is more cost-effective. The voluntary sector has a help and rescue culture and, because it is interested in social justice, it has a different value system.

181.

Mr Paisley Jnr: Are you critical of solicitors' firms that provide paralegal advice?

182.

Mr Alcorn: No, some firms recruit people from the advice sector. It is simply a market into which people will contract.

183.

Mr Paisley Jnr: There is clearly a demand for it.

184.

Mr Alcorn: There is a big demand for it.

185.

Mr Paisley Jnr: Your submission identified the vast number of clients who come to CAB each year and stated that 53% of cases involve social security benefits. Can you give the Committee information that shows whether the cases are civil, immigration or criminal? If people seek legal advice that the CAB cannot provide, do you have a list of recommended solicitors to whom you can send them?

186.

Mr Alcorn: The CAB uses a solicitors' rota. If there are five or six firms in a town, they take turns to come to the CAB office for a couple of hours on Fridays. If the CAB handles a case during the week, such as a divorce that requires legal advice, the people involved are put on the solicitors' rota. The rota means that the CAB is impartial and does not form a link with one firm.

187.

For the purpose of the Reform of Legal Aid, legal advice is defined not as advice given by a solicitor but as advice given about the law. Therefore, with that definition, the CAB will continue to give legal advice. The legislation states the cut-off point at which it is appropriate for the CAB to refer clients to someone with more specialist knowledge.

188.

Mr Paisley Jnr: Can you give the Committee a breakdown of the number of civil, immigration or criminal cases that are presented to the CAB?

189.

Mr Alcorn: I will get that information; I do not have the figures to hand.

190.

Mr Paisley Jnr: The submission states that there is considerable demand for legal advice and that there is a large amount of unmet need. The CAB deals with a large number of people - 200,000. What do you mean by considerable demand and a large amount of unmet demand? Is it double that again?

191.

Mr Alcorn: The CAB receives about 200,000 cases a year and around half of those relate to social security benefits. It has an appointment system for people who need to fill in disability living allowance (DLA) forms and for debt and money advice. Telephone monitoring from BT indicated that the CAB misses about 200,000 phone calls a year, which is a demand that it cannot meet. Demand for the CAB's services is heavy. That is the best that I can tell you. It is my gut feeling.

192.

Mr Paisley Jnr: Can you put a number on it?

193.

Mr Alcorn: No, it is similar to the demand for health services. It is probably a bottomless pit.

194.

Mr Paisley Jnr: I agree that demand is high, but do you have any information, other than your gut feeling, to give the Committee an idea of what suggestions it should pitch back to Government to meet that demand?

195.

My final question relates to the definition of legal advice and from whom it is provided. Does the money that the CAB receives for providing an advice service go to the adviser, the CAB's representative at the tribunal or to the CAB?

196.

Mr Alcorn: We are funded in two different ways. There are 28 offices across Northern Ireland, run by local management committees. They are funded primarily by district councils, but they also raise money from other sources such as the community fund and charitable trusts. They use that money to run the local office and to employ staff. They may employ someone as a money advice worker or as an adviser. Therefore, no money goes to individuals. They are employed to carry on the business of giving advice.

197.

The second way in which we are funded is that my office receives a direct grant from the Department for Social Development to provide back-up services across Northern Ireland regarding IT, up-to-date information, training and so forth. There is a regional grant and a local grant, which varies widely from council to council.

198.

Mr McLaughlin: You have dealt with the matter that I was concerned about in your response to Mr Paisley. Were you part of a consultation process? Have you made a submission in relation to the preparation of the legislation?

199.

Mr Alcorn: The Court Service has been good about keeping us informed and inviting us to meetings. We have made two or three submissions at various stages, and we have been asked to provide another one by 20 July.

200.

Mr McLaughlin: In the context of our discussion on legal costs, have you supplied the statistics of those caseloads that you were able to service and your projection on unmet needs? Did you put any cost projection on it?

201.

Mr Alcorn: I have given the Court Service the tribunal statistics for the past couple of years. CAB produced a report on debt last year entitled 'Would You Credit It?', and I sent that to the Court Service. I have kept them as well informed as I can of our workload and of unmet need.

202.

With regard to funding and costs, the legal services commission will presumably take over the existing legal aid budget. The whole thing is pitched at restraining costs. We do not know how much of the £30 million that appears to be spent in Northern Ireland will be allocated to civil legal services, and how much would be available for CAB to pitch for. That will not be established until the commission -

203.

Mr McLaughlin: Is it the experience of colleagues in England and Wales, and the indicative percentage relationship in terms of overall budget and funds that they were able to access, a useful pointer towards the likely experience that we would have in Northern Ireland?

204.

Mr Alcorn: I have provided figures for England and Wales. Approximately half the CAB offices in England and Wales have contracts from the Legal Service Commission. It is generally felt to be quite demanding but to have substantially raised standards in the advice sector, and the funding has been generous; for example, the salary for a specialist post is about £40,000. That is not simply the salary of one person, it also covers administrative support and costs. In our sector that is a very generous sum. It has been positive in bringing new money in, in funding the matter well, in introducing a quality-assured framework, but it also puts demands on us. People are reasonably pleased with it.

205.

Mrs E Bell: Locally, I know that the Committee can get a monthly record of cases that CAB has dealt with and also tribunal cases where large sums of money have been given back where they should have been paid out originally by Government Departments. It may be useful for the Committee to have that, especially as you say that you are unsure where you will pitch your costs. It would be awful if CAB were included in the new legislation simply as a restrictive position as regards giving out its services. It would be helpful if the Committee were given statistics about how much money has been saved.

206.

Mr Alcorn: I have two comments on that. The 'Scope' article was my attempt to take a strategic look at the unmet need for advice and put it into some sort of context. I do not want to give the impression that we are unsure of our costs - we are fairly competent about costings.

207.

Mrs E Bell: I was not suggesting that, but it may be useful for the Committee to state in its submission that CAB cannot be undermined as regards costs.

208.

Mr Alcorn: Some of our offices collect those types of statistics, and money won at tribunals is retrieved for social security claimants. When the money is added up it runs into hundreds of thousands of pounds. They are significant amounts of money.

209.

The Chairperson: Thank you for your presentation. On behalf of many Members I congratulate the Citizens Advice Bureaux for the very helpful role that it plays, particularly in referrals from many public representatives.

Mr G Campbell (Chairperson)

Mr A Maginness (Deputy Chairperson)

Mrs E Bell

Mr Dalton

Mr J Kelly

Mr McLaughlin

Mr Paisley Jnr

Prof B Dickson ) Northern Ireland
Human Rights Commission

210.

The Chairperson: I welcome Prof Dickson. I inadvertently overlooked the fact that we have some graduates from Harvard Law School with us in the gallery - Shaun Stacy and Tanya Monforte. I should have extended a good Northern Ireland welcome to them, and I apologise for overlooking them. They are here to study what we are doing, and perhaps we will now give them some rationale for being here.

211.

I thank Prof Dickson for responding and for appearing before us today. Perhaps he would like to give a short presentation and then answer any questions that members might have.

212.

Prof Dickson: I apologise that I am alone this afternoon. I had hoped to be accompanied by one of our research officers, but unfortunately she has been unable to attend. I also apologise that the Northern Ireland Human Rights Commission currently does not have a great deal to add to the paper we supplied to the Committee at the end of last week. That is due to the timescale involved. We hope to produce a fuller document for the Northern Ireland Office by 22 July, but we have not been able to do that for today.

213.

We are considering the draft Access to Justice (Northern Ireland) Order 2002, because we have a duty under the Northern Ireland Act 1998 to advise the Secretary of State of measures that ought to be taken to protect human rights. We have been involved in the consideration of legal aid reform since it was first mooted in 1999. We are in favour of the suggestion that a legal services commission be established, because we have always been slightly unhappy with the idea that the Law Society should take decisions on the funding of cases when it is Law Society members who benefit from the allocation of funding. Although it can be argued that Northern Ireland has too many quangos, this proposal is perhaps well worthy of support.

214.

We approve of the duties imposed on the legal services commission by the proposed article 6 of the Order, though more detail is needed as to the length of the planning periods, the regularity of the appearance of plans and the arrangements for consultation on those plans. Likewise, we welcome the powers imposed on the legal services commission by article 7, but - and this will be a constant refrain of my submission - so much will depend on how those powers are exercised. This legislation seems to be very much framework legislation, and the devil will be in the detail and in the way in which the powers are exercised by the commission.

215.

There is a certain lack of clarity as to the intentions behind the Order regarding the exclusions that can be provided from the civil legal services.

216.

As far as we can judge, the old assistance by way of representation (ABWOR) scheme will be provided for in the concept of civil legal services - although I cannot be certain about that. We want the scheme to be totally included in the civil legal services.

217.

The exclusion of electoral petitions, coroners' inquests and tribunals from the definition of civil legal services is unjustified. Election petitions and coroners' inquests ought to be included in the civil legal aid scheme, and, occasionally, some tribunals ought to attract the civil legal services' assistance as well.

218.

We are not in favour of contracting out legal services, and we made that position clear when we responded to the Government White Paper and in our discussions with the then Minister. We adopted that position because we were not convinced that contracting out would necessarily enhance the quality, choice and accessibility of legal advice and assistance in Northern Ireland, primarily because there are so many single- person solicitor firms dealing with the needs of rural or relatively inaccessible communities. If contracts were given to a few large solicitors' practices, that, in theory, could increase the inaccessibility of legal services to those in rural areas or close to single-person firms. So much would depend on how the contracting is operated in practice.

219.

There is evidence of unmet legal need in Northern Ireland. The Northern Ireland Association of Citizens Advice Bureaux has made us aware of that. We have no objection in principle to the funding code, but we would like to examine in more detail how the code has operated in England. We want the draft Order to be amended so that a high quality of consultation on what is in the code occurs.

220.

Capping the civil legal services budget is a potential breach of article 6 of the European Convention on Human Rights. The case law of the European Court of Human Rights is not totally clear on that. However, in the right circumstances, a denial of legal services could be an infringement of article 6.

221.

We would be concerned if the compiling of priority areas for funding were influenced in any way by a Department, and that is because the Government may be a defendant in some cases. Further clarification of that is required. We would like to have a reassurance from the Lord Chancellor's Department that the power of the Lord Chancellor to make orders is not intended to influence the legal services commission's choice of priorities. Human rights cases should be given a high priority in the funding code.

222.

The Northern Ireland Human Rights Commission (NIHRC) is a statutory body empowered to give financial assistance to applications, and its members would be unhappy if the legal services commission decided that it therefore had no need to prioritise human rights cases. That would be unfortunate, as the NIHRC's resources to support individual cases are very meagre. In over three years, we have assisted only 28 individuals. However, we would be reluctant for the legal services commission to refuse assistance on the basis that the NIHRC is, in theory, available to assist.

223.

We are pleased that the criminal defence services budget will not be capped. We approve of the proposal to create a criminal defence service code of conduct and applaud the commitment to comply with section 75 of the Northern Ireland Act 1998.

224.

Throughout the Order and the explanatory document in general, we regret the absence of any reference to international human rights standards. That is not to say, of course, that the Government intend to breach those standards. However, it would be good practice for the Government to refer to those standards and to clarify how the new Order will comply with them.

225.

There is a doubt about the propriety of the registration provisions. The Order does not appear to have any mechanism for allowing an individual to appeal against a refusal by the legal services commission to register him or her.

226.

Mr Campbell: Thank you for your presentation. You said that it could be argued that there are too many quangos, but that the legal services commission might be useful. You are almost inviting us to ask you to name the quangos that you may be prepared to sacrifice, but we will not go down that route.

227.

Mr J Kelly: The Committee heard evidence from the representatives of the Lord Chancellor's Department on Tuesday of this week. We talked about the engine for the new service, what its composition should be and where the interviewing panel should be drawn from. Have you any view on the last point? The representatives did not give any views on it. I take your point about members of an interviewing panel being not just representative of religious and political differences, but also to gender, racial and social difference. Will there be an adequate interviewing panel that will consider those factors?

228.

Prof Dickson: The Human Rights Commission's view is that, whatever the composition of the interviewing panel, they should be very aware of the different dimensions of representativeness so that they do not look just to a person's religious or political background, but also to the other differential features that we mentioned. We have not thought about exactly who should be on the interviewing panel. Our practice dictates that the panel ought to be quite representative, certainly as regards gender and religious background. Those are the Equality Commission's recommendations.

229.

Mr Paisley Jnr: Paragraph 19 mentions the criminal defence services. You welcomed the criminal defence service code of conduct. As the draft Order is rather vague, can you suggest anything that should be included in that code?

230.

Prof Dickson: The proposed code of conduct is an aspect of the draft Order that the Human Rights Commission has not yet been able to consider in detail. Obviously, we want the criminal services provided under the criminal defence services section of the Order to be fully compliant with human rights standards, but the international standards on that are slightly vague.

231.

Other aspects of good quality are promptness of response, openness in the legal team that is carrying out the work, and a commitment to explain the significance of the assistance and of the legal processes to the individual beneficiary. We are anxious to ensure, on both the civil and criminal sides, that the system is not exploited by the legal professions for their own ends, and that instead they provide a service which is always to the benefit of the applicant.

232.

Mr Paisley Jnr: With regard to promptness and explanations, one of those is more likely to be in the hands of the system rather than in those of solicitors and legal advisers.

233.

Prof Dickson: I referred to the contact between the legal representative and the individual applicant. Aspects of the system will be outside the control of the defence lawyers.

234.

Mr Paisley Jnr: The usual vaguenesses are there, but nothing specific to suggest the more beneficial code that you want.

235.

Prof Dickson: I am not in a position to comment. There may well be something when the final report is produced next month, but I cannot now be more precise.

236.

Mr Paisley Jnr: It is perhaps unfair to say that paragraph 16 of the report is predictable, but it says what was expected, and rightly so. You must fight your corner, and that is to be commended. However, in respect of the daily effect on people, you must recognise that other cases that have top priority are classed as civil, criminal, and immigration. Why have you made that your position? Do you not recognise that there are other, greater, needs than human rights?

237.

Prof Dickson: We recognise that other cases deserve to be high on the list of priorities. Human rights law, however, is in a sense a higher law. The Human Rights Act 1998, which is now binding in Northern Ireland and which incorporates the European Convention on Human Rights (ECHR), takes precedence over other laws that are inconsistent with the Act. To all intents and purposes, they can be ignored. Judges are under obligation to interpret other laws, as far as it is possible to do so, in a way that is consistent with the Act.

238.

Our experience has been that human rights issues can arise in the most unpredictable situations. For example, when we were first established we did not anticipate that planning matters would be of such interest in Northern Ireland from a human rights perspective. We had to work on that issue, even though we had not originally planned to do so. Paragraph 16 relates to the civil side, and human rights issues crop up particularly in cases involving family and children. It is particularly important to prioritise cases involving vulnerable people like children. Discrimination issues are embraced by the concept of human rights, and those are included in our prioritisation.

239.

Mr Paisley Jnr: Paragraph 7 indicates that the provision of legal services should be set at a reasonable level. Could you put more flesh on those bones and give a more specific definition of "a reasonable level"? Are you in a position to propose a formula that would allow us to work that out?

240.

Prof Dickson: Again I cannot be more precise. The Human Rights Commission is from time to time concerned at the reported level of fees in civil cases.

241.

Mindful as the NIHRC is of the importance of accountability in public expenditure, it does not wish to see unnecessary money spent on legal services. Lawyers have an obligation to work for the public good, not for their own. However, that is not to say that they should not be paid at all for their services. It will be a question of balance. The legal services commission will need to set fees that make the work attractive to lawyers but that the public does not feel are excessive.

242.

Mr Paisley Jnr: Will you name your price?

243.

Prof Dickson: Not at this point, and probably not next month either.

244.

Mr Paisley Jnr: That then makes paragraph 5 of your submission redundant. How can we set a reasonable level or suggest a capping formula if you cannot tell us what a reasonable level is?

245.

Prof Dickson: The Human Rights Commission is happy with the current fee structure that the Law Society and particularly the Legal Aid Department approve. We are unhappy when exceptions are made to the existing fee structure for particular reasons, either because of the complexity or importance of the case or whatever. We would like those exceptions to be truly exceptional and for the normal structure to be applied in every case.

246.

Mr Paisley Jnr: In paragraph 6 of your submission you discuss the duties of the legal services commission, and you strongly state that

"a duty should be imposed on the Legal Services Commission to consult widely on the extent of unmet legal need."

247.

Representatives of the Northern Ireland Association of Citizens Advice Bureaux (NIACAB) gave evidence before you did, and they could not quantify the level of unmet legal need, although we all believe that it is large. Indeed, they used that term. I assume that you based your advice on what NIACAB told you, and you have no additional evidence to suggest what you believe the extent of unmet legal need to be. Will you suggest how a legal services commission would accurately quantify that unmet legal need?

248.

Prof Dickson: Our statements are based not merely on what NIACAB have told us, but also on what we know from the Law Centre (Northern Ireland), and from research carried out three or four years ago in the School of Law at Queen's.

249.

The legal services commission could consult using a quasi-opinion-poll survey in which random participants are asked whether they have had legal problems, and, if so, whether they have been able to obtain assistance to deal with them.

250.

As you know, Mr Paisley, many voluntary and community groups in Northern Ireland ought to be able to provide evidence of unmet legal need, albeit unsystematically. It is possible for private and public organisations, including businesses, to take some soundings on the adequacy or otherwise of legal provision.

251.

Mr Paisley Jnr: Again, "random" is inaccurate, and "soundings" would not make me confident; you are asking that they have a duty to try to guess the unmet legal need randomly, through surveys. We are fishing in the dark, and you are asking us to do that.

252.

Prof Dickson: When I said random, I meant that those selected for the quasi-opinion-poll survey would be selected in a manner that is consistent with how these things are properly done. In other words, you would go to the electoral roll and take, for example, every fiftieth person or whatever, and ask that person what his or her experience has been.

253.

Mr Paisley Jnr: In 300,000 people?

254.

Prof Dickson: I was using that as an example. I did not mean it would be random in the sense that it would be erratic or unreliable.

255.

Mr Paisley Jnr: In paragraph 5 you suggest that the legal services commission should consist of at least one member. Would you be happy with a one-member legal services commission, or should there be two, three or more members? Are you going to be specific and tell us that there should be one member?

256.

Prof Dickson: No. We would not be happy with a one-member commission. We want a plurality of views and experiences represented on the commission.

257.

Mr Paisley Jnr: How many members should there be?

258.

Prof Dickson: I apologise if this appears unhelpful, but the Human Rights Commission has not thought about that. We have 13 members; the legal services commission should not need more than that.

259.

Mr Paisley Jnr: In paragraph 4, you cite issues that interest you: being representative of the community and what you mean by representation. However, you assure us that the most important thing is to ensure that those who form the commission should be there on merit.

260.

Prof Dickson: That is an important point. That must be the main criterion used in the selection, but merit must be defined carefully in this context. Merit might include, for example, having had experience as a customer of the legal services system rather than being somebody who provides legal services. There are different ways in which one can gain knowledge of the system that one is being asked to implement.

261.

Mr Paisley Jnr: Is the aim to recruit people based on what they can provide and on their skills, as opposed to their gender or ethnic origin?

262.

Prof Dickson: I agree with that. Generally, it is unfortunate that we must label people so much in Northern Ireland. On the other hand, it is important to bear in mind the different types of experience that people bring because of their different religious, gender or social backgrounds.

263.

Mrs E Bell: Professor Dickson, I agree with you that once legislation starts to be implemented it must be accessible and accountable to those who need it. Notwithstanding some of your real concerns, which I share, is the draft Access to Justice (Northern Ireland) Order 2002 capable of doing that?

264.

Mr Paisley Jnr asked about the unmet legal need. In paragraph 6 you state that a duty should be imposed on the legal services commission to consult widely on the extent of unmet legal need. Should that be more strongly worded, or should we make it clear in our submission that you feel that it is important enough to be done?

265.

Prof Dickson: It is important that the legislation is explicit as to the need for the legal services commission to consult widely. We cannot have a system run purely by detached people who may have an eminent legal background but are not fully aware of the real need in the community. It would be a wasted opportunity if this reform did not provide for proper consultation to be conducted by the legal services commission in this regard.

266.

Mrs E Bell: Yes. As political representatives, we often come across people who need this legislation. It must be clear and transparent to them. Those who help them - the NIACAB, for example - must have everything in the legislation that will allow them to help. That is a basic requirement. It is important that we have clarification on the registration of those providing funded legal services. Your submission states that:

"there appears to be no provision for appeals against a refusal to allow, or against a decision to cease to allow, registration."

267.

Prof Dickson: You have summarised it well. The Order provides for the registration of people who provide legal services, but then seems to state that registration can be refused or taken away without any further ado. That might be a denial of the right of lawyers, or people working for agencies, who expect to receive contracts, to exercise their profession, business or entrepreneurial skills. There should be some mechanism in the Order to allow for complaint, otherwise the potential for discrimination or vindictiveness is too great.

268.

Mr Maginness: Why are you not in favour of allowing the legal services commission to contract out the provision of legal services?

269.

Prof Dickson: I will preface my answer by saying that much depends on how the system will operate. The possibility exists that contracts, grants, loans and other financial arrangements will be made for the benefit of the well-organised firms, agencies or organisations that are experienced, Belfast-centred and traditional in their approach; whereas the less experienced small firms or individual lawyers seeking a contract might not be able to attract it. Further marginalisation of that sector might result.

270.

Mr Maginness: What is the alternative to that?

271.

Prof Dickson: In our response to the White Paper, we stated that we approved the idea of the institution of a legal services commission. It was our opinion that it should take over the role of the Law Society and operate the existing system.

272.

Mr Maginness: Is it the case that anyone can provide services, subject to the grant of legal aid?

273.

Prof Dickson: That is the case, and we are in favour of their being subject to quality control.

274.

Mr Maginness: Is it your opinion that this is too restrictive?

275.

Prof Dickson: Yes, that potential is there.

276.

Mr Maginness: In relation to criminal matters, my understanding is that a system would emerge that is similar to the public defenders in the United States, although it would not be on par with that. What do you think of that?

277.

Prof Dickson: The working of the criminal defence system in England and Wales over the past two or three years needs to be considered. We need to be reassured that the individual's choice of lawyer has not been adversely affected by the new system. The Order is not as clear as it might be in stating that an applicant for assistance can have the lawyer of his/her choice. I have to admit that the international standards on that aspect are not clear either. Our preferred view is that, in almost every case, a person should be entitled to get the lawyer he/she wishes. I have to suspend further comment on that question until the NIHRC has looked at the matter in more detail.

278.

Mr A Maginness: I want to ask you a general question. The Order is entitled 'Access to Justice'. On consideration of its overall impact, is it the Human Rights Commission's view that access to justice will be expanded by the legislation, or will it be more restricted?

279.

Prof Dickson: The NIHRC's initial view is that there is nothing in the Order to indicate that there would be greater access to justice if it were passed. The commission views it primarily as a cost-cutting exercise by the Northern Ireland Office (NIO), despite there being little or no evidence that costs were getting out of control in Northern Ireland. While that reason might have necessitated reform of the system of legal aid in England and Wales, there is little reason to do so in Northern Ireland.

280.

Mr Dalton: You have said that costs in England and Wales were massively increasing. Does a similar problem not exist in Northern Ireland?

281.

Prof Dickson: The NIHRC does not think that there is a similar problem in Northern Ireland. That is shown in the figures, which I do not have at my fingertips. It was difficult for the Government to make a case that costs were out of control in Northern Ireland - where legal services have always been provided at good value for money. The amount of money spent on the same type of case has always been much less in Northern Ireland than in England or Wales.

282.

Mr Dalton: The figures that were given to the Committee at its last meeting, via the Lord Chancellor's Office, indicated that costs had increased from £12 million to around £42 million each year in the past 10 years. That represents a large increase. However, the Lord Chancellor's Office agreed that the figures represented costs pro rata, which were around £4 lower for each person in Northern Ireland than in England and Wales. Therefore, is it the commission's view that the reasons regarding costs, which are behind those proposals, are not justified in this jurisdiction?

283.

Prof Dickson: Yes. That was the view of the NIHRC when it responded to the white paper, and it is still its view. The commission does not deny that there has been an increase in overall expenditure. However, it does not think that that expenditure has been such that it would warrant those radical reforms.

284.

Mr J Kelly: In relation to paragraph 7 of your submission, which states that the commission is in favour of keeping legal fees at a reasonable level, and the consultation paper entitled 'Public Benefit and the Public Purse', which states that publicly funded legal services should be of a high quality, can I presume that when the commission says "reasonable level", it means a reasonable level for a quality service?

285.

Prof Dickson: Yes. As the consultation paper states, fees should not be so low as to be unattractive to legal practitioners, but not so high as to be excessive in the eyes of the general public. Clearly, professionals need to be paid at a rate that is good enough to encourage them to do the work. Speaking as a non-practising barrister, and with the greatest of respect to barristers, my view is that they charge excessive fees.

286.

Mr Campbell: On that financial note, the meeting shall end. Thank you, Professor Dickson, for your presentation and for the question and answer session.

287.

Prof Dickson: I want to add my appreciation to the Committee for reorganising the meeting in such a way that I was able to attend today rather than on Tuesday 11 June.

Mr Campbell (Chairperson)

Mrs E Bell

Mr J Kelly

Ms Lewsley

Mr McLaughlin

Mr Weir

Mr J Donnelly )

Mr P Kinney ) Law Society of

Mr B McGrory ) Northern Ireland

Mr J Bailie )

288.

The Chairperson: The Committee welcomes representatives from the Law Society of Northern Ireland. I apologise for the delay in starting.

289.

Mr Donnelly: I shall briefly introduce members of the Law Society of Northern Ireland team. I am Joe Donnelly, the Law Society's junior vice-president. I have a background in general private practice in Ballymena. Barra McGrory is a solicitor in west Belfast, again operating a mixed general practice. Paddy Kinney, a partner in the firm of Fitzsimons Kinney & Mallon, is a member of the council of the Law Society. John Bailie, chief executive of the Law Society, also happens to be a qualified solicitor.

290.

We welcome the opportunity to provide some input to your deliberations today. I would emphasise the scale and significance of the reform measures under consideration. The Government have chosen to bring forward this measure under the Order in Council procedure. I need not labour the point with the Committee as to the undemocratic and unsatisfactory nature of that procedure, but we wish to emphasise why it is especially unsatisfactory in this case.

291.

The Committee will understand that the recent experience of the Law Society, and, perhaps, of the Assembly, in dealing with the consultation processes under the Northern Ireland Act 1998 has not been an especially happy one. When the Government produced the decisions paper, the Law Society made clear that it wished to see the details of the proposals before any meaningful assessment could be made.

292.

Almost two years have passed, and we have now received a draft Order in Council, with a consultation period that is likely, in our view, to prove inadequate. Once again, we are obliged to appear before the Committee when we are halfway through our scrutiny of the draft Order, and in the context that, when launching the decisions paper, the Parliamentary Secretary at the Lord Chancellor's Department took pains to explain that he wished to attach weight to the views of the Assembly.

293.

The Committee will, of course, form its own judgement as to whether it has been given sufficient time or information to come to grips with reform proposals on this scale and of this complexity, given that this is likely to be the only meaningful, democratic input into framing the Order and that the Committee has not been previously consulted.

294.

This is the first major reform in this area of public services provision for some 35 years. If reforms of this scale were proposed in any other context, such as the National Health Service, the timescale and legislative process would be regarded as completely inadequate. In its own way, this debate is as important to Northern Ireland as education reform.

295.

The application of inappropriate remedies on the basis of a misdiagnosis will have profound and unpredictable consequences. It is for those reasons that, if the Committee considers that it has had inadequate time to research and consider the issues properly, we suggest that the Committee might be prepared to make a specific point of that and ask for more time in the autumn to allow further examination of the proposals.

296.

We do not suggest that lightly, but those issues are too important to rush or to allow the Committee to be bounced. It is better to take time and get the reforms right than be driven to an artificial, arbitrary deadline set by the Government. There is no compelling reason, other than, perhaps, a Treasury expectation, for these reforms to be put in place until the Committee has had an opportunity to properly assess them.

297.

Having emphasised that point, I now refer to the papers sent to the Committee, with apologies that these have not been available until the last few days. The main document is a briefing note, in which we set out our fundamental position and raise concerns. That is supplemented by a copy of our submission on the feasibility of a contingency legal aid fund, and it will be followed by a separate note on criminal legal aid.

298.

The Committee may be refreshed to know that our purpose today is not to wrangle about costs. That is a major emphasis of the Lord Chancellor, who argues again and again that there is a costs problem in Northern Ireland, for which solutions such as capped budgets, funding codes and new controls reserved to him are required.

299.

We beg to differ. The briefing note sets out some highly significant costs figures that are inconvenient to the Court Service analysis. We invite you to consider the available statistical evidence, set out in the net expenditure comparators at paragraph 2.16 of the briefing note. This suggests that any costs "problem" there is in Northern Ireland lies in the historical and chronic underfunding of this particular service. A grasp of this is critical to any evaluation of the Northern Ireland solutions proposed by the Government, which, we suggest, are driven to a significant extent by costs considerations.

300.

We prefer to focus on access to justice and the extent to which the interests of those in need of legal services in Northern Ireland will be improved, or damaged, by these proposals. Generally, the reservations about the proposals arise because the proposals have every potential to be expensive, disproportionate, over-bureaucratic and, in some cases, unnecessary reforms that are based heavily on an English model.

301.

During this brief presentation I propose only to touch on several main strands of the reforms that appear in the draft Order. I will deal with our position on each, and we will be happy to take any questions that Committee members may have.

302.

First, concerning the proposal to transfer administrative responsibility from the Law Society to a new body to be called the legal services commission, we make clear in our briefing note that we have no fundamental objection to relinquishing that responsibility, which we have discharged over the past 35 years.

303.

However, we have considerable reservations as to whether another commission of this type and size is necessary or appropriate for the administration of legal aid in Northern Ireland. We need to keep a sense of proportion, and we must bear in mind that there are other simpler models by which the principal objective of effective administration of public funds could be achieved. We do not have accurate figures for the cost of the commission, and we note that no estimate seems to appear in the published documents. However, we have many indications that it will be another expensive and elaborate bureaucracy, which is going to impose a charge on public funds much greater than the present scheme.

304.

In another sense, it is misleading for the Government to emphasise the independence of the operation of the new commission. Throughout the draft Order, there are extensive powers for the Lord Chancellor to give directions and guide the commission, quite apart from the role of the Lord Chancellor in promoting regulations and controlling costs. The old word for this type of body was a quango, but it is more accurate to describe the new commission as quasi-autonomous.

305.

We want to make clear that we do not denigrate the importance of the work of administering publicly- funded legal services on behalf of the taxpayer. However, we must remember that, as an administrative unit, Northern Ireland is the size of one of the smaller legal-aid areas in England, such as Chester. From our experience of statutory commissions in Northern Ireland, we know that they tend to be ambitious for their own expansion and status. As I have indicated, we can point to a different and simpler model, and we can develop the point more fully if you would find that helpful. In the meantime, it is our responsibility to let you know that the commission in the form proposed in this legislation may well turn out to be an expensive piece of over- engineering.

306.

Secondly, in our briefing note we mentioned our concern that the Government propose to enact contingent or fallback provisions in the Order. On the one hand, the Government affirm their intention to find Northern Ireland solutions to Northern Ireland problems, yet, on the other hand, the terms of the draft Order and the range of powers to be conferred on the commission are identical in all material aspects to the legislation in place in England and Wales, though not in Scotland. The difference is that the legislation in England and Wales has been put in place through a full parliamentary process. The Bill, which became the Access to Justice Act 1999, was debated over months and was subject to amendment during the debate.

307.

Part of the difficulty that all of us in Northern Ireland are currently experiencing with the consultation process - and we suspect that it is a difficulty that you will also have - is in identifying precisely what these provisions mean. At a minimum, the Government should be required to now make their intentions clear as to what provisions in the draft Order are to be commenced with the intention that the powers will be exercised within, say, the next three years. If it is not intended to exercise those powers, the provisions should be deleted from the draft Order and should be re-presented through whichever parliamentary process applies at that time. It is essential to seek that clarification and deferment because, as it stands, the Order is indistinguishable in its intent and potential from what is being done in England and Wales.

308.

In addition, the intentions of the published proposals are entirely obscure. At various points in the decisions paper, the Government had indicated that working parties would be established to examine details. For the most part that has not happened, and so we remain largely in the dark as to what this will mean in practice.

309.

Thirdly, we want to draw your attention to the terms of article 47. I promise that this is the only point in this presentation at which we will focus on money issues. This article identifies the principles to which the Lord Chancellor is to have regard when setting fee levels. You may think that there is nothing wrong with those, and, of course, no one would wish to argue that services should not provide value for money. We need to look at this more closely in view of what we have suggested about the real cost agenda of the Treasury behind these proposals, and the chronic underfunding of legal services, which we have set out in the statistical analysis in the briefing note.

310.

I would invite you to look at paragraph 55 of the decisions paper, and compare what was said there with what is now in article 47. In the context of announcing decisions about the costs principles to be applied, the Government included a commitment to take into account "the general level of fee income arising from the work" and "public sector comparables". For reasons that are not set out anywhere in the published proposals, both of those principles have been omitted from the draft Order. Why? Well, it is entirely plausible to think that the Government realised that what we had been saying about legal aid in Northern Ireland not being expensive in absolute or comparative terms is correct. The agenda seems to be, at all costs and whatever the evidence, to avoid the implications of the Government's own decisions as set out at paragraph 55 of the decisions paper.

311.

The present formula by which solicitors' and barrister's pay is set by the Lord Chancellor, is by reference to the principle of fair and reasonable remuneration for work necessarily undertaken and reasonably done. We would invite you to consider whether there is anything objectionable or wrong about that principle. In view of the evidence we have given on the cost effects of that principle, there is no reason why the formula should not be retained. We wish to emphasise to you that it is a false analysis to suggest that the interests of the consumers of publicly-funded legal services, or the interests of access to justice, will be served by remuneration levels that are less than reasonable and fair.

312.

It is perfectly possible for the Government to include with article 47, even if the other principles set out therein are retained, a statement that the objective of setting remuneration levels would be to achieve fair and reasonable remuneration for the services provided, and that, for the purposes of achieving that objective, the Government would be entitled to take into account the other principles that appear in the text of article 47 at present. We should also seek to hold the Government to their commitment set out at paragraph 55 of the decisions paper, so that the two principles that have mysteriously gone missing should be included within article 47.

313.

Fourthly, in relation to quality standards, I draw your attention to what we say in the briefing note about the baseless concerns of the Government, and the serious damage that will be done to access to justice if the Government persist in pointless bureaucratic interference in legal practices that are providing these services at no profit or at very low margins. We have already drawn attention to the warning signs - namely, the creation of an elaborate bureaucracy with the potential and powers to impose a tremendous additional burden of red-tape compliance costs on solicitors' small business units, and the fact that the Government have failed to explore and define the nature of quality standards by way of the working party promised in the decisions paper.

314.

If you can recognise that there is some point to those fears and concerns, the solution might be to urge the Government to engage meaningfully with the Law Society in discussion of this issue and in developing some basic codes of conduct. Those would give the Government and the commission the reassurance that they need, without imposing an additional burden of regulation, and further intrusion into the right of clients to deal with their solicitors on a confidential basis, which is an essential part of the independent role of the solicitor in providing legal advice.

315.

Finally, we would draw your attention to the provisions in Part III of the draft Order, which deal with what are called alternative funding options that apply to all civil personal injury actions, not just legal aid. We ask you to pay particular attention to what is going on here. This entire Part is a prime example of how the Government have completely failed to understand all that they have been told about the Northern Ireland litigation culture and the ready access to justice that is provided through the network of solicitors' practices. Part III is, word for word, a direct lift of English provisions that have created chaos in the English litigation process, and which have the potential to do tremendous damage here unless the advice offered by the Law Society and many others is heeded.

316.

Put simply, Part III contains the mechanism which in England has led to the unregulated operation of claims-management companies, such as Claims Direct; the exploitation of individual litigants; the domination of the market by the same insurers who operate the defence side of litigation; and the effective denial of choice of solicitor. The simple question is - do we want the same for Northern Ireland?

317.

The reason we need to talk through this at some length is that, as you may have noted, none of this debate appears in the draft Order or the explanatory materials that have been published by the Court Service. I would ask you to look at paragraphs 68 to 70 of the decisions paper. In paragraph 69 the Government purported to recognise distinctive features of Northern Ireland practice, as advised not only by the Law Society but also by other bodies with experience of how things are done here. In the same paragraph the nature of the insurance market in Northern Ireland is noted as "immature". Frankly, in the Law Society's view, we can well do without the type of maturity represented by what has happened in England and Wales.

318.

At paragraph 70 the Government mentioned the establishment of a working group. That was set up under the chairmanship of His Honour Judge David Smyth. I refer you to the Law Society's submission to the working group, dated 11 April, which you should have before you. That document encapsulates our concerns and sets out proposals for a genuinely different solution suitable for Northern Ireland - a contingency legal aid fund (CLAF). This would be pump-primed by public funds but would be independently run on a not-for-profit basis, probably by the new legal services commission. It would become self-sufficient financially within a few years.

319.

Also, we set out the reasons why the arrangements introduced in England and Wales, as reflected in Part III of the draft Order, are not suitable for Northern Ireland. Those arrangements would prejudice access to justice. We argued that funding of litigation could not be left to the unregulated and uncontrolled operation of the insurance markets. I draw your attention to page 2 of our submission and would like you to read in particular relevant extracts from page 5, specifically paragraphs (f) and (g).

320.

It is important that you should know that a CLAF model, very much on the lines recommended by the Law Society, was developed, and recommended to the Lord Chancellor, by Judge Smyth's working group last year. We then learnt that the Lord Chancellor had commissioned a feasibility study, and we understand that, perhaps to the inconvenience of the Government, the outcome of that feasibility study was positive. It suggested that a publicly-run and independent CLAF might well work in Northern Ireland and might be financially viable.

321.

I might add that we have had most of this information second-hand. We have had no response from the Government to our express concerns about the way the English proposals would be highly prejudicial to access to justice here, and the reasons why that type of funding arrangement may not be necessary for Northern Ireland. After a long silence, what we got is what you find in the draft Order. I emphasise again that this is word for word the same system that has been enacted in England and Wales. We have no idea why the working group's proposals have been rejected. All we know is that the English model now proposed for Northern Ireland has worked with considerable discredit and difficulty in England and Wales for some three to four years.

322.

We also know of an indication from the Government that they will contemplate only a privately-funded, profit- based arrangement, conceivably dominated by the insurance industry, as set out at article 41 of the draft Order. Taken together, the proposals in Part III will have all the negative effects on independent access to justice that we have warned about consistently and which have been demonstrated in England and Wales.

323.

All of this tends to confirm that the Government agenda is to remove the funding of personal injury claims from public expenditure as soon as possible, and that they have no genuine interest in finding a Northern Ireland arrangement that will preserve the strengths of our current litigation and culture. We can provide you with a dossier of examples of how the insurance-based model, as introduced in England and Wales, will work against the interests of claimants. In the claims- management market the claimant becomes little more than a selling opportunity for an often unnecessary insurance product. Freedom of choice of solicitor is inhibited, incentives are provided for early low-cost settlement, and a profit is taken by the claims- management company for the sale of the insurance product and to the detriment of the claimant.

324.

We suspect that the Committee may have heard little about that aspect of the debate to date, yet it is one of the most important and complex issues, affecting access to justice beyond the matters of legal aid otherwise dealt with by the Order. Part III has profound potential to damage the interests of those who need ready access to genuinely independent legal advice in personal injury claims. However, it is tagged on to these legal aid reforms and disguised as part of an improvement programme for the administration of legal aid. I have a press cutting from one of today's papers that backs up my comments.

325.

Against that background, if the Committee considers that those matters are to be explained and debated more fully, we would respectfully request that it might consider the following course of action. First, given that there has been widespread concern about the operation of Part III provisions in England and Wales, and confirmed concern from a wide range of opinion in Northern Ireland about the importation of that model here, the model should not be introduced or provided for in the draft Order. If the Government priority is, as we understand, to reform the administration of legal aid and to ensure that the new legal services commission is in place by April 2003, there is no reason why they should not be prepared to withdraw Part III at this stage.

326.

Secondly, the interval thereby created would allow for a proper and full debate that would include an explanation from the Government of why the recommended CLAF model for Northern Ireland was not acceptable; would allow time to see how the chaos that has been created in England and Wales by the new system is resolved or otherwise; and would also give time to explore with the Law Society our concerns about the operation of the legal expenses insurance market and its particular negative effects on access to justice here.

327.

Thirdly, should you consider it appropriate to do so, it would be helpful also if the Government could be urged to enter into a meaningful discussion with the Law Society about those matters identified in our submission to Judge Smith, and specifically our positive suggestions for accreditation of an insurance product model, as set out in paragraph (g) on page 5.

328.

I thank you for your patience in listening to our lengthy explanation. However legalistic or arcane it may seem, we assure you that it is of vital importance to the future interest of claimants in this jurisdiction.

329.

The Chairperson: Thank you for your comprehensive presentation. We will now have some questions.

330.

Mr Weir: Thank you for your presentation. You said that legal aid costs in Northern Ireland tend to be lower than in the rest of the United Kingdom. However, the Committee took evidence from the Lord Chancellor's Department at an earlier session that suggested that, in the last 10 years, legal aid costs have increased by about 350%. Whether or not those costs are on a pro-rata basis with the rest of the United Kingdom, there does appear to be a spiralling increase here. How would you respond to the claims of the Lord Chancellor's Department?

331.

Mr Donnelly: I refer Committee members to our briefing paper. Our response would be that in more recent times there has been a surfeit of legislation. Criminal law comes to mind; as Members will know, various pieces of human rights legislation have been introduced. That means that there is considerably more work for lawyers involved in, for example, disclosure in criminal cases, which is now de rigueur. The Crown has to produce all the paperwork and complete disclosure.

332.

It is just an example of how more papers have to be perused. For example, over the last 10 years, the Children (Northern Ireland) Order 1995, which is complex legislation relating to family law, has been introduced. Solicitors have had considerable work in connection with that legislation. I am sure that you, as a lawyer, are aware of recent litigation.

333.

Mr Bailie: There may be some misunderstanding. The Law Society of Northern Ireland is not opposed per se to controlling legal aid expenditure and making it predictable. However, we are lost as to how that can possibly be done intelligently until the drivers for the sorts of cost increases shown in the figures that have been given to you are understood. As Mr Donnelly said, there are all sorts of indications that the Government will introduce new initiatives that will lead to an automatic increase in costs. That will not be because solicitors and barristers are being paid more, but because the amount of work will increase.

334.

We need to keep this in perspective. The legal aid budget in Northern Ireland is around £50 million. The budget in England for asylum and immigration cases next year is predicted to be between £150 million and £200 million. That is purely on one area of law. That is a good example of what I have been saying. The Government take a political initiative on matters such as asylum and immigration. The legal aid bill increases, and the lawyers are blamed for it, but it is nothing to do with them. It is because there has been a political initiative that has had consequences for the legal aid budget.

335.

By all means look at control and what is happening in the budget, but there has been no empirical research into what the actual drivers of legal aid expenditure in Northern Ireland are. Until that is known, a decision cannot be reached on a sensible system of control.

336.

Mr Weir: A brief look at the legislation seems to indicate a divergent position between how criminal legal aid is treated and how civil legal aid is treated. Especially with reference to individual cases, there are clear appeal mechanisms if someone is turned down for criminal legal aid or, alternatively, is restricted to a level that is felt to be inappropriate. The legislation does not appear to contain the same level of appeal mechanisms. It appears that the final decision is ultimately taken within the new law commission. How satisfactory, or otherwise, are the procedures as regards appeal mechanisms for civil legal aid?

337.

Mr Bailie: We are not entirely sure that we understand how the appeal mechanism is meant to operate. There are many examples, especially on the civil side, where the legal services commission is being established, yet very little is said in the documents as to how many of the decisions are to be arrived at.

338.

Another obvious example is where somebody applies for legal aid and is turned down. If we assume that the English model will be introduced, then beneath the level of the legal services commission there will be panels of lawyers established to deal with those types of appeals. If there are no effective rights of appeal in the circumstances that you described, that would a matter of concern to us. It is just another example of the obscurity of the proposals.

339.

Mr Donnelly: An appellate section serviced by in-house lawyers will obviously make it quite expensive.

340.

Mrs E Bell: Thank you for your presentation. I do not have any legal questions - I do not have the same abilities as Mr Weir. I am more interested in your comments about the administration involved. Like most representatives, I have had occasion to help clients in such instances. I have been concerned that the administration that has been proposed will not be as effective as your system. I am not saying that your system was perfect; there are grounds to review it, as you have agreed. The proposals about the administrative arrangements state that the present system for independent oversight will be abolished. Does the Law Society feel that that provision should remain and be part of the new system?

341.

You said that the society hopes that the Committee will be able to delay the process. This is the second Ad Hoc Committee of which I have been a member, and on the last occasion the Committee managed to delay the process for two months, but its views were not properly listened to. The Committee will try its best because it shares your concern that this is a cost-cutting exercise that will be to the detriment of the man in the street, and, as a public representative, I am very much against that.

342.

Mr Bailie: There is an important distinction between what happened before and what is happening now. On some occasions, the Law Society has been part of the same unsatisfactory consultation process, complete with inadequate time limits. There are two differences. First, as we said in the presentation, we are discussing an area that has not been reformed for 35 years. The reform will implement a process that will last for 10 to 15 years. It is equivalent, perhaps on a smaller scale, to NHS reform or the ongoing education debate. It is not a piece of NIO legislation that is around the margins of change to criminal procedure. It is fundamental, and it is better to take time to understand it, and to provide informed comment on it, than to rush it through for an unspecified reason. Secondly - and this is critical - at the time when the decisions paper was launched by the Parliamentary Secretary in the Lord Chancellor's Department, he said that when the legislation was available, the views of the Assembly would be given weight.

343.

Mrs E Bell: Good.

344.

Mr Bailie: He said that two years ago. Nothing was then heard until about six weeks ago when the draft Order was published and referred to the Committee. Therefore, this is not an ordinary referral, under section 75 of the Northern Ireland Act 1998, of a piece of legislation that affects criminal procedures. The Government said that they would attach weight to the views of the Assembly, and the Assembly cannot be taken seriously unless it is given time to examine, and come to an informed opinion on, the complex issues that are before the Committee today. That is the special case that I would make for this piece of legislation.

345.

Mrs E Bell: I could not agree more. However, the other Ad Hoc Committee of which I was a member dealt with just as an important piece of legislation, and it felt that it was not listened to. I hope, given the comments of the Committee Clerk, the Chairperson and the Committee members, that this Committee's views will be considered.

346.

Mr Bailie: It is important that the Government be held to their stated commitment to give weight to the Assembly's views on this reform programme.

347.

Mrs E Bell: We will have that noted.

348.

Mr McLaughlin: It is interesting that there is so much common ground between those who will debate this issue here. The experience that the Assembly and its Ad Hoc Committees have had of dealing with the Government is poor. The Assembly's opinions on these exercises have carried no weight in practice, which is a lamentable and frustrating. The Government's planning trajectories are clearly established.

349.

If we are to make any impact, the best tactical arguments appear to be those concerning the concepts of scale and best value. There are clear indications that although the Government may be listening, they are not necessarily hearing what we are saying.

350.

I have not had time to study the submission to Judge Smyth. It is a very significant document. Will it be on the record of this Committee?

351.

The Committee Clerk: It will be appended to the final report.

352.

Mr McLaughlin: Would we have to go through a procedural process if we wished to adopt all or part of that?

353.

The Committee Clerk: Yes. We would have to consider the document in full.

354.

Mr McLaughlin: That answers my question, and we can return to that matter. It seems that you are dealing with the most effective means of addressing these issues and bringing forward the local realities. I support the comments that have been made today. As those are contained in the document, I do not see any point in using up any more of your time or ours We have made these points to other witnesses, and I simply want to see them reflected in the work of the Committee and its report.

355.

Mr Donnelly: Thank you, Mr McLaughlin.

356.

Ms Lewsley: I apologise that I was not present for all of your presentation. You are already carrying out the role that the legal services commission is being set up to fulfil. Like many people, I have reservations about that. The Executive are conducting a full review of public administration and yet we are about to set up another quango. You said that you could describe a different, simpler model. Could you expand on that?

357.

Mr Bailie: We can come back to the Committee in the next day or two with an outline on paper of how that model might work. We should consider the historical development of legal aid services in the UK. The Law Societies in Scotland, England and Wales used to administer legal aid in much the same way that we do. A time came when it was recognised, probably rightly, that because of the scale of the operation, a professional body was required to operate the system, and a change was made to institute legal aid boards. Scotland still has a legal aid board. In England, there was an evolutionary process, beginning with a legal aid board, which was in existence for about 10 years, and moving to a legal services commission. That is significant because the business of putting legal aid administration in order and ensuring that the system works properly should be the first priority.

358.

What is being proposed here is that we would skip the evolutionary process and move from the position that England was in 1988 to the position that was reached in England in 2000. The Law Society of Northern Ireland has real concerns that handing over the administration and ensuring that it runs smoothly is a difficult enough process, without encumbering the new body with all sorts of research and advisory responsibilities, which can only distract it from the main job that it should be focusing on.

359.

Broadly, what we had in mind was similar to the first-stage model, which still applies in Scotland in the form of the Scottish Legal Aid Board. In that model, the administration is removed from the Law Society and given to a separate body. The body is more self- sufficient because it comprises a mixture of lawyers, people with experience of running the administration for the past 35 years, people from the voluntary sector and people with business experience. That can be done without all of this elaboration, and without handing over a huge range of powers to the legal services commission and the Lord Chancellor, with very little idea of how those will be exercised or controlled.

360.

The Chairperson: Towards the end of your submission, you mentioned a dossier of examples of the way in which the insurance-based model created in England and Wales would work against the interests of claimants. Would it be possible for the Committee to have a copy of that?

361.

Mr Donnelly: Yes, certainly.

362.

The Chairperson: For the Committee's benefit - and, not least, my own benefit - I would like to try to summarise the Law Society's position, as stated towards the end of your submission, without, I hope, oversimplifying it. Am I right that the Law Society is asking that the Part III provisions be withheld and not proceeded with a this stage; that sufficient time be created to allow for a debate to take place in which a Northern Ireland model of CLAF could be discussed and, it is to be hoped, agreement reached on; and, subsequently, that within that period, the Law Society's specific suggestions about the accreditation of an insurance model should also be discussed?

363.

Mr Donnelly: That is correct.

364.

The Chairperson: Thank you very much for your answers, and for your patience at the outset when the start of the meeting was delayed. Obviously, the Committee will be continuing with its deliberations. We would be grateful if you could provide the additional information that we mentioned.

Ms Lewsley (Acting Chairperson)

Mr Beggs

Dr Hendron

Mr J Kelly

Ms McWilliams

Mr C Murphy

Mr Shannon

Mr Weir

Mr S Beattie ) General Council

Mr D Hunter ) of the Bar of

Mr J McNulty ) Northern Ireland

365.

Mr Hunter: One of the Bar's principal concerns about the draft Order is that the court, rather than the Legal Services Commission, should determine the level of representation for a person who requires access to justice. Only the court can take an informed and objective view of the level of representation required in the light of the issues, substance, seriousness and complexity of an individual case. Article 30 wholly restricts access to justice, because it removes the court's role of determining the level of representation.

366.

The review and appeal process envisaged by article 31 is cumbersome, unnecessarily bureaucratic and time consuming. It is wholly inappropriate to, and inconsistent with, the desired expeditious disposal of criminal cases. Determination by the court of the nature and level of representation would remove the need for the restrictive and cumbersome principles and procedures embodied in articles 30 and 31.

367.

An important point is that in many respects the substance and shape of the draft Order is as yet undefined. Many regulations and codes remain to be made and prepared. The Bar urges the Committee to demand that it take a continued supervisory and consultative role in the definition of access to justice in Northern Ireland.

368.

Mr Weir: What is your view on the level of consultation that was afforded by the Government? What is your opinion of the proposed timescale for the implementation of the draft Order? How responsive were the Government to the recommendations of Judge David Smyth's working group, which suggested the contingency legal aid fund (CLAF) model? The Government do not appear to have recognised that group's work, rather they have submitted the English model verbatim.

369.

Mr McNulty: The Bar is especially alarmed that, although it went to the trouble to gather local information from many sources in Northern Ireland in order to determine how the system works, the recommendations of Judge Smyth's working group were ignored. The reason for ignoring the working group's recommendations was not given in the explanatory paper, which is puzzling. If there were good reasons for ignoring the recommendations, they should have been explained. There is an apparent intent to impose the English model.

370.

It is unsurprising that the Government are attempting to proceed as expeditiously as possible. As in many similar situations, the timescales allow for consultation, but the extent of that consultation remains to be seen. The Government sought specific information on predetermined matters, and the Bar will respond in due course. Some of the details on which information was sought are not especially relevant to the important issues. On the other hand, some aspects of real importance were not spelt out and do not appear to be envisaged as subjects of this real consultation. Ultimately, however, every body that have been asked to carry out consultation will be able to conduct a review, but we do not know the extent to which those reviews will be given recognition.

371.

Mr Weir: You highlighted your concerns about the appeal procedure for criminal defence services. Will you comment on the appeal procedure, if any, for civil legal aid? The legislation appears to be very vague in that regard.

372.

Mr McNulty: Given our limited information, we do not sufficiently understand what those procedures really are. We are specifically concerned about prioritisation, because it could lead to inequalities. We are concerned that budgetary or time factors could determine whether or not an eligible person receives assistance. An easy system to make appeals based on criteria or prioritisation does not seem to have been envisaged. However, we do not have sufficient information to make a judgement on that.

373.

Mr J Kelly: Do you share the views of many solicitors that the present system is inaccessible to certain people and that the draft proposals will increase that problem?

374.

Mr McNulty: The overwhelming view is that the proposals will at least advance people's opportunity to access justice. Access probably needs to be widened, because over the years the proportion of people who are eligible for assistance has been gradually restricted because of financial constraints. When the relevant legislation was introduced initially, a wider percentage of the public were eligible for assistance, but there has been a gradual cutback over the years in order to save money. The threshold has been changed; as a result, people who would have been eligible 10 or 15 years ago are no longer so.

375.

Mr J Kelly: Will those who need assistance most be more disadvantaged under the draft Order?

376.

Mr McNulty: That will be the case for some people.

377.

Dr Hendron: Your summary referred to

"an endorsement of the principle of full and free access to justice for all those persons in Northern Ireland who deserve and/or need such access."

The next point states that there should be

"an emphasis that such access in Northern Ireland should be a wide access, not a narrow and restricted access."

378.

I have no difficulty with that, but I am concerned about the words "deserve and/or need". I have no doubt that many would need such access, but how does one define "deserve"? There is probably a legal explanation that I do not understand.

379.

Mr Hunter: I was primarily responsible for drafting the summary. With respect, you made a good point. The inclusion of "deserve" was an - undoubtedly clumsy - effort to distinguish between civil legal services and criminal defence service. Criminals who need legal aid may not deserve it.

380.

"Deserve" refers to people with civil difficulties. For example, the owner of a small company with a genuine dispute or problem who needs legal advice or representation deserves access to justice. That was the vision: the legislation will serve both the deserving person with a civil case and the criminal who needs legal representation.

381.

Dr Hendron: That explanation is very helpful.

382.

Ms McWilliams: The Committee is concerned that problems in England will be transferred to Northern Ireland. It went down that road with the criminal injuries compensation scheme, with which it had little luck. The Secretary of State and the Minister who is responsible for the justice system have decided that whatever they have decided will do.

383.

First, why are the Government so keen to apply the English model, despite the fact that Northern Ireland may not have similar problems? Secondly, will you elaborate on the no win, no fee issue? Thirdly, it appears that the reforms could result in cherry-picking of cases, which again leaves excess. How will public defenders be affected? It concerns me that the proposed Legal Services Commission may decide who is given the public defending role.

384.

Mr Beattie: I will respond to your question about no win, no fees. My experience comes from my brother, who was injured in a minor road traffic accident in California when a car drove into the back of his vehicle. One third of his damages were removed in one fell swoop as a result of a straightforward case. The Bar in Northern Ireland apprehends that contingency fees, if introduced, will be a blueprint for greed in the legal profession.

385.

That may sit ill from the mouth of a lawyer. However, we run the risk that the best cases will be cherry picked. People will take the best cases from clients, who will have to overpay for justice that could be meted out under the current legal aid system, using the statutory fees that are set in the Orders.

386.

The risk of the no win, no fee system is that if solicitors are offered good cases that they feel that they will win, people with more difficult cases will either be shown the door or will have to agree to pay their solicitors a higher percentage of their damages in order to persuade them to risk taking on their cases. Therefore, as apprehended by Mr Kelly, there will be an even greater denial of access to justice.

387.

The Bar fears that the door is opening to greed. That is why the contingency fee system, which takes a percentage of damages from the litigant, cannot sit alongside a system in which all cases feed a small charge into a central fund. The Bar's apprehension is that the proposals have been slavishly followed in Northern Ireland because of the headline-grabbing bad publicity of excessively high legal aid payments in England, especially in London. That does not happen here.

388.

Mr Weir stated that the Government have failed to respond to the challenge of the Bar and the legal profession. Judge Smyth's working group found that legal aid payments in Northern Ireland accounted for one third of the overall total. The Government have failed to tell us where money is lost in the Northern Ireland legal aid system. We have serious concerns that a no win, no fee system could become a channel for greed.

389.

Mr Hunter: I will discuss public defenders. At present, a defendant is represented by independent counsel, that is to say, independent members of the Bar who have a duty to their client and to the court. The word "independent" should be underlined, because the Bar has retained its independence. There is no element of pomposity or self-congratulation, but it is generally recognised that Northern Ireland still has a fiercely independent Bar.

390.

If there was an overwhelming pressure on the system, whereby people accused of a crime found it difficult to obtain representation, one might begin to see the merits of a public defender system. Such a system might be appropriate and helpful in some large English cities outside London where the Bar is small, or its personnel are overworked or under extreme pressure, or where people accused of a crime do not receive the service that they deserve or need. If they do not deserve it, they certainly need it. No such pressure exists in the Northern Irish system, and we do not envisage such a situation.

391.

First, a public defender system might not be appropriate for Northern Ireland. The English system takes into account needs and problems that may not exist in Northern Ireland. Secondly, a public defender system may introduce an element of needless bureaucracy and a lack of independence on the part of defence counsel.

392.

Ms McWilliams: Are you concerned that the proposed Legal Services Commission might have its favourite solicitors, to the exclusion of others? Is there a suggestion that some solicitors might annoy the commission, and, as a result, get no work?

393.

Mr Hunter: There certainly is. To illustrate that, article 36 of the draft Order allows the commission to refuse to fund any civil or criminal defence services - legal aid is the general term - provided by a solicitor who is, for the time being, prohibited from providing such services under article 51 of the Solicitors (Northern Ireland) Order 1976. That refers to a solicitor who has been the subject of a disciplinary hearing.

394.

Your point relates to criminal law, so I will deal with the criminal aspect of the article. Article 36(2) relates to the commission's power over the Bar; it states that the commission shall not fund any criminal defence services provided by a barrister if it determines that, arising out of his conduct when providing or selected to provide such services, there is good reason for the commission to refuse to fund services provided by him. That highlights your point.

395.

In determining the level of representation to be provided or whether those services should continue, the commission could have the power to decide not to select or fund a solicitor because it does not like his or her face. I agree with and endorse your point.

396.

Mr C Murphy: The Assembly has set up a series of Ad Hoc Committees, some of which dealt with justice matters. The Committees' track record of influencing the outcome of Westminster legislation leaves a good deal to be desired. At some stage, justice powers may be transferred to the Assembly, by which time Committee members would have more influence. I share many of your concerns about the proposals in the draft Order. Are you using any other channels of influence?

397.

Mr McNulty: Invariably, the Bar Council must make representations to the Lord Chancellor's Department on matters as and when they arise. We are not often listened to either, so the Committee is not alone in that regard.

398.

As it stands, the draft Order proposes to transfer the court's power to decide the required level of representation to administrative officers, who will have primary responsibility for ensuring that there are sufficient funds in their budget to meet the overall need for an accounting period. Inevitably, under such a system, some people will be dissatisfied with the level of representation awarded to them, assuming that they are eligible. The proposals include a significant administrative tier of procedures to be followed at a time when someone is in prison or on bail awaiting trial - courts are expected to act more efficiently and quickly in such circumstances. That can create only further administrative delay in the system.

399.

Our objection is not only that the proposed system would result in clumsy administration. The person who is best placed to make an independent judgement on the level of representation required by anyone facing a criminal charge is the judge who will try the case. He will know how important it is and what the difficulties are. He alone is best placed to make that independent judgement. Under the present legal aid system, he decides the appropriate level of representation in any individual case.

400.

There is no explanation of the proposal to remove that right. We can only infer that it has been removed in order to control the budget. Although that is a desirable objective, we fear that it will result in injustices for some people facing criminal charges. One important underlying principle is that a criminal justice framework ought, to some extent, have equality of arms. One cannot have an organ of the state being represented by the most able and experienced legal representatives at a high cost, while the defendant is represented on a limited budget by whomever the commission chooses. That fundamental change would be grossly unfair.

401.

Mr Beattie: The Bar was asked whether it was frustrated at having been consulted only once by the Government. The Bar has never had an opportunity to have a free and frank exchange of views with representatives of central Government in this form. The Government is carrying out a box-ticking exercise; once they have a written submission, they can forget about it.

402.

The Bar has been invited to a round-table discussion with the Northern Ireland Human Rights Commission next Monday to discuss how more pressure should be brought to bear on a practical level. We received that invitation only this afternoon. Our media-driven Government may jerk more readily to a reaction from the Human Rights Commission than they would to one by elected representatives, and certainly more readily than to people interested in the provision of justice. We will actively explore that approach and would be happy to liase and provide information to the Committee on its progress.

403.

Mr Hunter: Mr Weir mentioned the timescales of consultation procedures and the fact that the Smyth Report was ignored; there is a great deal of railroading, about which we should be apprehensive. I accept your point about the Committee's track record of influencing legislation, but it is vital that, despite the lack of impact to date, Assembly representatives' voices continue to be heard.

404.

Much remains to be done on the Order. "The devil is in the detail", as they say, and many regulations and codes remain to be made. Voices must continue to be heard and we should be concerned about this "Restricted Access to Justice Order", if I may so describe it.

405.

Mr Beggs: The proposed commission will determine whether it is appropriate for a barrister to be appointed. If the barrister is not satisfied with that outcome, the matter could be referred to the High Court, which would be an expensive measure. Would an appeal hearing be appropriate in those circumstances? Secondly, what other criteria would you recommend to determine a barrister's suitability in an appeal?

406.

Mr Hunter: The article 31 appeal procedure is unnecessary. It is required only because the commission will have removed from the court its power to determine the level of representation. At present, the court decides how serious a case is, whether a person needs a solicitor, a solicitor and counsel, or whether the case is so substantive that a solicitor, a junior counsel and a senior counsel are required. The court's determination process is expeditious and is carried out by the body that best knows the case, and is able to determine objectively the representation that is required.

407.

Appeal to the High Court is a third tier of the appeal process laid down by the draft Order. That process is cumbersome, time consuming, bureaucratic and expensive. It would not be needed if the court continued to determine the level of representation.

408.

Mr Beattie: On the issue of individual barristers and their suitability, The Bar Council has long established a professional conduct committee, which is chaired by a High Court judge. That committee includes, as a matter of course, a lay member of the public as a panel member and decision-maker. It would be inappropriate if the Order bypassed that committee, when they appear to be content to leave it to solicitors to govern themselves as to their suitability. That cannot be fair or consistent.

409.

The Acting Chairperson: You recognised the desirability of and need for the Legal Services Commission. Given that the commission will duplicate the present arrangements and perhaps do more, is it needed? Would it not be better to enhance the present arrangements? In the light of the Government's public administration review, is there not a better alternative to another quango? The system of legal-aid boards in Scotland, for example, might be a better model.

410.

Mr McNulty: The commission is intended to take over the Law Society's administrative role. The proposal was made because concerns were expressed. There is a policy to try to involve various outside bodies in the provision of legal services to the public. In order to control the funding of those bodies, funds will need to be channelled through a specific route. The groups include consumer organisations, citizen's advice bureaux, and so on. It is contemplated that funding will be channelled through the commission. From an accountancy and financial perspective, it will be much easier for the Government to track the money being used to provide legal services.

411.

A rationale for establishing the commission could be a need to widen the provision of legal services throughout the community. That need would be based on the inability of the existing structure to cope and its lack of legislative powers to deal with the new arrangements. The commission will cover the existing system and the wider aspects contemplated. It would be possible to extend the powers of the existing bodies. However, pressure groups have historically been unhappy that the provision of legal services should be restricted to solicitors; they want to widen that provision. It is essentially a policy issue.

412.

The Acting Chairperson: You mentioned access to legal services, but not the financial implications. The Order is a cost-cutting exercise. The Lord Chancellor's Department said that they would assess need in Northern Ireland and then provide a sum of money to cover the need. The Lord Chancellor's Department was asked what would happen if, at the end of the financial year, no money remained to give legal aid to those who are entitled to it. Because they would be capping the money available, they could say that cases could not be taken through legal aid.

413.

Mr McNulty: It is proposed that capping be applied to civil legal aid services; obviously, central Government will benefit from that. It could create problems: the availability of the service at the end of a financial year may depend on how much money is in the budget. On the defence side, the Government have conceded, in principle, that it is inappropriate to cap; that may be the reason for transferring the function of determining the level of representation from the judge, who will not have an eye to the budget, to the commission. The commission will decide the required level and quality of representation, taking into account budgetary needs. That may well be part of the philosophy behind it.

414.

Mr Beattie: The Human Rights Commission welcomed the diversion of funding away from solicitors, who would be perceived of having a vested interest. Frankly, it is a case of "out of the frying pan and into the fire." The man in the street will suffer from funding cuts.

415.

Ms McWilliams: The Committee shares your view that many details remain to be decided. Working parties will not report their findings until the end of the summer. Given our lack of success in amending any clauses, never mind overall principles, the Committee might consider your suggestion that we keep a continuing supervisory and consultative role.

416.

There is a great deal of this legislation that we do not see. We could suggest strongly that this Ad Hoc Committee continue to exist for as long as is necessary, because the process will have several phases. We would obviously take our soundings from you as the Order goes through. I have never before seen legislation in which so much has been left undecided.

417.

Mr Hunter: We endorse and support your comments. You used the words "strongly suggest"; it is up to you to determine the politics of making representations to Westminster, but "demand" may be a better word to use. Given the importance of the subject, it beggars belief that you should be denied a continuing consultative and supervisory role. We would support you completely in firm and robust and strong demands to Westminster for a continuing role, and we would welcome the continuance of the Ad Hoc Committee in that regard.

418.

Ms McWilliams: Under section 75 of the Northern Ireland Act 1998, before something is closed down, the impact of that change must be ascertained. The Northern Ireland Court Service has been designated as a public body under that legislation, but how does the Lord Chancellor's Department fit in?

419.

Mr Beattie: The Northern Ireland Act 1998 requires a Northern Ireland Minister and the Northern Ireland Office to ensure that it complies with the requirements. However, the Lord Chancellor seems to take on central Government's role, so the Northern Ireland Act 1998 is not fully applicable in the context of non-devolved powers. The Bar's apprehension is that central Government are retaining the power, so a Northern Ireland Minister does not have to ask himself or herself whether he is acting in accordance with section 75. It is implicit that the Lord Chancellor is not required to do that. A disappointed litigant may challenge the system at the European courts in due course, but that will be far too late for most people involved in access to justice.

420.

Central Government asked consultees for views on their proposal to require a consultation before making or revising the funding code. The fact that they asked that question beggars belief also. The challenge will come, but in an ad hoc way. Individual litigants will take a challenge to Europe, incurring consequential time and expense.

421.

Mr J Kelly: Alan Hunter and Paul Andrews said that the new Legal Services Commission would be the engine behind the reforms. We asked them how they envisaged members' appointment to the group, and who would be on the interviewing panel, but they did not give us a satisfactory answer. The Northern Ireland Human Rights Commission stated that the Legal Services Commission should be representative of the community in Northern Ireland, not only as regards religious and political differences, but also to gender, racial and social differences. If we are to have no influence on how the system operates, can we have some influence on its formation?

422.

Mr Hunter: We can have an influence by continuing to make our voices in same way as at present. I agree with your previous consultees' point about the make-up of the commission. The Legal Services Commission will happen; the Bar recognises that reality. We also recognise that because legal aid is so important, it should be dealt with by a separate, independent body concerned with a wide access to justice. The make-up of that body is of the utmost importance, and I agree that we should continue to make our voices heard in respect of that.

423.

Mr J Kelly: The Citizens Advice Bureaux also raised that point. It recognised that there is a large, unmet need, which is increasing in many cases. For example, in many social security cases, solicitors are present on one side but not on the other. That is a growing concern among public representatives. To what extent can we influence the commission on such local issues?

424.

Mr McNulty: At that level, one would undoubtedly be more likely to wield influence on the basis of track record. Our main concern is the power that the proposed legislation gives the commission. Since we do not have the details of the proposed powers of the commission, we are not aware how restrictive it will be, and that makes it difficult to say anything meaningful about the matter. The more commission members with Assembly recognition or endorsement, the better it will represent the public interest.

425.

Mr Beattie: There is a very strong argument for the Assembly to be represented on the commission, since, if responsibility for justice were devolved back to Northern Ireland, its Committees - including your Ad Hoc Committee - would be critically important. If the Lord Chancellor merely selected his own members, the body would become a democratic fig leaf rather than a real commission. The fear is that the commission would act as the Chancellor's dog to do his bidding. We are obliged to point out the risks. We should not stop saying something merely because people are not listening.

426.

Mr Shannon: With the introduction of equality legislation, will legal aid be made available for those who bring their resultant concerns and complaints to our attention? Many believe that equality legislation will introduce a pot of gold at the end of the rainbow for solicitors and barristers. We have concerns about that - how will it work?

427.

Mr McNulty: We do not have the details to enable us to answer that in any meaningful way. Schedule 2 excludes certain categories. The possibility that those categories will be increased or reduced is left open, as has the scope of whatever funding is available. That was an excellent question, but I cannot give any meaningful answer.

428.

Mr Shannon: Would you wish to take it on?

429.

Mr McNulty: Yes.

430.

Mr Beattie: We were obliged to take it on. The idea of the pot of gold is a criticism that is levelled, with some justification, in England, where some legal aid fees are breathtakingly high. In civil law, and in criminal law after negotiation with central Government, scales are set down, either formally in written guidelines, or in the County Court and High Court rules. They are fixed by statute. In that sense there have been ongoing negotiations and discussions. Interestingly enough, article 7 of the draft Order envisages the removal of the scales. There would be no recognition of any appropriate scales. We are almost obliged to do it, and we should all be involved regardless. If we cannot defend our fees, something must be done about that too.

431.

Mr Beggs: The Law Society provided figures on the net criminal legal aid expenditure per capita of the population. They showed that Northern Ireland costs in 1997, 1997 and 1999 were about two thirds of the level in Scotland, England and Wales. Are there corresponding figures for barristers, or do the figures cover all legal fees?

432.

Mr McNulty: I understand that they cover all legal fees. It is difficult to be clear on the matter. One of the reasons that there is concern at central Government level is that historically, in England, as soon as anyone went through the door of a solicitor's office they were charged per hour of that solicitor's time.

433.

Consequently, they did not have - and do not have - scales of fees that would determine the appropriate fee for a particular category of case. The fees sometimes reported in the papers were astronomical - they were completely out of proportion to the level of importance of the issues involved. That is driving part of the Government's determination to deal with the matter.

434.

The same situation does not affect barristers in Northern Ireland, because their fees are based on pre-determined scales. These are either statutory rates, or going rates determined on a voluntary scale recognised by the taxing master. Generally, fees are lower here, and there is more access to barristers than in equivalent English cities or areas. We operate slightly differently: we have a Bar Library system, as opposed to a Chamber system. Solicitors here can get access to barristers much more easily than they can on the mainland. Therefore, barristers tend to be much more accessible to solicitors and the public here, fees tend to be lower, and people are not charged on an hourly rate.

435.

I cannot answer your question definitively, because I doubt that we have the statistics available. However, when English counsel visit us, we get the impression that we are not only a backwater but also a very poorly paid one.

436.

Mr Beattie: The gross legal aid bill in 1997, which included the Bar, was £22·3 million. The same bill in England was £1·552 billion. That is the context in which we challenged the Government to give us the breakdown of the cost of the Bar, never mind the overall legal profession. They have refused to do that. That is the gap that exists - and this is the sledgehammer that is being used to apparently crack the nut in Northern Ireland.

437.

The Acting Chairperson: Thank you for your presentation and for answering members' questions.

1. The Proposed Draft Access to Justice (Northern Ireland) Order 2002 would reform the provision and administration of publicly-funded legal services in Northern Ireland.

2. The current provision of publicly-funded legal services can be traced back to the Legal Aid Act (Northern Ireland) 1965. Since the 1965 Act there has been no substantive legislative reform until a consolidating Order was made in 1981. That Order, the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, is the current statutory basis upon which legal aid is provided and administered.

3. The Proposal for a Draft Access to Justice (Northern Ireland) Order 2002 is therefore the first fundamental reform of publicly-funded legal services since the 1965 Act.

4. In February 1998 the Government announced a review into the provision and administration of legal aid in Northern Ireland. The terms of reference for the review were to:

(a) undertake a review into arrangements for the administration and provision of legal aid in Northern Ireland, bringing forward recommendations for change where necessary; and

(b) consider in the Northern Ireland context the proposed reforms to legal aid in England and Wales.

5. The objectives which were set at the outset of the reform programme and which are fundamental to the Proposal for a Draft Order are:

(a) ensuring appropriate funding arrangements to secure best access to the most appropriate means to resolve legal issues for citizens;

(b) targeting resources to those in greatest need;

(c) ensuring that the overall cost of legal aid is affordable and controllable;

(d) securing value for money in respect of publicly-funded legal services; and

(e) establishing the most effective and efficient administrative structure to deliver publicly-funded legal services.

6. As a result of this review, a Consultation Paper, "Public Benefit and the Public Purse" was published on 14 June 1999.

7. The weight of opinion in response to the proposals for reform were as follows:

(a) the establishment of new independent body to administer publicly-funded legal services was broadly supported;

(b) there was support for the administrative body to determine priorities in a transparent manner (following conducting research projects and introducing reforms by piloting);

(c) there were concerns about the proposed use of capped budgets for civil legal services;

(d) the value of a funding code to determine whether cases should receive funding was recognised;

(e) there was a strong preference for the use of standard fees rather than exclusive block contracts;

(f) there was some support for quality measures, but arguments were presented that the professions should be self-regulated; and

(g) there was some support for the development of a Contingency Legal Aid Fund with little support for Conditional Fee Agreements.

8. Following extensive consultation the Government published a Decisions Paper "The Way Ahead" [CM 4849] in September 2000. The Government stated that the approach set out in the Decisions Paper would provide a modern, transparent and accountable administrative structure to deliver high quality publicly-funded legal services to all the people of Northern Ireland. The draft Order provides a legislative framework to deliver the decisions outlined in the Paper "The Way Ahead".

9. The Proposed Draft Order would modernise the administration of publicly-funded legal services in Northern Ireland by establishing a new, Non Departmental Public Body, the Northern Ireland Legal Services Commission. Responsibility for administration of publicly-funded legal services in Northern Ireland would be transferred from the Law Society of Northern Ireland to the new Commission. The Commission would administer all aspects of publicly-funded legal services. The establishment of the Commission will be the Government's first priority.

10. The Commission will have a statutory duty to obtain best value for money from the public money used to purchase publicly-funded legal services.

11. The Proposed Draft Order establishes two types of publicly-funded services, namely: Civil Legal Services and Criminal Defence Services. Both services will be administered by the Commission and will comprise the provision of advice and assistance and representation.

12. The Lord Chancellor will allocate funds to the Commission to provide Civil Legal Services. The funding allocated to Civil Legal Services will be controlled through a capped budget and the Commission will apply tests to determine which cases will attract funding. Priority will be given to funding the most deserving and important cases.

13. The Lord Chancellor will also pay funds to the Commission to provide Criminal Defence Services. The court will determine whether it is in the interests of justice that a defendant should receive criminal defence services. The Commission will then determine the number and description of representatives which will be funded.

14. In respect of Civil Legal Services and Criminal Defence Services the Commission will be able to fund salaried lawyers to provide representation, either from within the Commission or a body established to deliver publicly-funded legal services.

15. The Proposed Draft Order would take power to introduce new means to fund litigation in Northern Ireland. The new mechanisms will open up access to justice to individuals who would not otherwise be eligible for public funds to support their case. The options available under the Proposed Order would enable no-win-no fee agreements to be introduced in Northern Ireland. The draft legislation also contains powers to enable a privately funded Contingency Legal Aid Fund to be established. This model would require parties who win their case to pay a proportion of costs (and, possibly, damages) into the fund which would then be used to support those cases which in the event are lost with no costs therefore from the defendants.

16. The draft Order will introduce new arrangements for the payment of fees to lawyers for publicly-funded legal services. The new remuneration arrangements will provide for a range of assessment methods for lawyers fees including providing all- inclusive fees ("standard or graduated fees") on a per case basis. The new fees will seek to balance appropriate remuneration with affordability.

17. The Proposal for a Draft Order includes powers to require legal service providers to comply with a registration scheme and quality standards if they are to provide publicly-funded legal services. The introduction of new quality measures will ensure that everyone receiving publicly-funded legal services can be assured of an appropriate standard of service. Introduction of quality assurance will ensure that the Commission can demonstrate that the services purchased at public expense are of a high quality.

18. The Proposal for a Draft Access to Justice Order sets the framework for the future provision of publicly-funded legal services. Implementation of the provisions set out in the Proposal for a Draft Order will be taken forward with the Legal Services Commission over a period of years.

19. The involvement of the Commission in the implementation of the provisions will be essential. We anticipate that the Commission will wish to conduct research and facilitate consultation on a wide range of the issues in conjunction with meeting legal need.

20. There will be two initial strands to the implementation of the provisions set out in the proposal. The first strand will be the establishment of the Commission in April 2003. This will be followed by the implementation of new provision for remuneration of Criminal Defence Services in December 2003.

18 June 2002

I write to acknowledge receipt of your letter to Alan Hunter of 14 June on the above matter.

I have made a few alterations to my responses as recorded in the transcript and attach a copy of the transcript which reflects these amendments.

At page 26 of the transcript Mr Paisley Jnr asked a question in respect of the net expenditure per head of population on criminal legal aid. I have had the opportunity to consider the question as recorded in the transcript and to review the basis upon which the net expenditure figure was calculated. I wish to amend my answer to Mr Paisley's question as the figures quoted do not reflect the number of cases.

To address Mr Paisley's question, I can advise that:

The number of bills paid per head of population for criminal legal aid in the period 2000/01 was as follows. In England and Wales there were acts of assistance in respect of 4.36% of the population. In Northern Ireland there were bills paid in respect of 1.44% of the population.

A table setting out the detail of this answer is attached. The table reflects the information for the year 2000/01, being the last year in which the information is available at present.

I look forward to receiving a copy of the transcript in its final form.

Approximate population - 52.5 million Acts of assistance = 4.36% of population

Approximate population - 1.69 million Acts of assistance = 1.44% of population

19 June 2002

At the hearing before the above Ad Hoc Committee on June 2002, the Northern Ireland Court Service undertook to provide members with some additional information.

I now enclose twelve copies of the following papers:

• Graphs setting out expenditure and volume of cases in civil legal aid since 1996/1997.
• Graph setting out the current and projected spend on criminal legal aid up to 2008/2009.

You may also consider that it might be useful for committee members to have two other documents:

• The Code of Practice established by the Scottish Legal Aid Board in respect of solicitors and firms providing criminal legal assistance.
• The Criteria section of the Funding Code operated in England and Wales.

I enclose these for your consideration. In respect of the Funding Code you will wish to note how funds are controlled.

The Commission will fund only the following levels of service as part of the Community Legal Service, subject to the provisions of the Act, orders, regulations and directions made under the Act, these criteria and the Funding Code Procedures:

1. Legal Help.

2. Help at Court.

3. Approved Family Help - this can be either General Family Help or Help with Mediation.

4. Legal Representation - this can be either Investigative Help or Full Representation.

5. Support Funding - this can be either Investigative Support or Litigation Support.

6. Family Mediation.

7. Such other services as are authorised by specific orders or directions from the Lord Chancellor.

Legal Representation and Support Funding will be funded only in relation to proceedings for which advocacy may be funded in accordance with paragraph 2 of Schedule 2 to the Act. Help at Court will be funded only in proceedings before the High Court, any county court and those magistrates' court proceedings specified at paragraph 2( 3) of the Schedule.

Contracts or guidance may specify what items may or may not be charged as disbursements under each level of service.

Note: Nothing in these definitions limits the power of the Commission to place conditions or limitations on any grant.

"Legal Help" is a level of service the grant of which authorises services falling within Section 4( 2) of the Access to Justice Act 1999 other than:

(i) The provision of general information about the law and legal system and the availability of legal services (except where such provision is incidental to the provision of help in a specific case).

(ii) Issuing or conducting court proceedings.

(iii) Advocacy or instructing an advocate in proceedings.

(iv) The provision of mediation or arbitration (but this does not prevent legal help being given in relation to mediation or arbitration or covering payment of a mediator's or arbitrator's fees as a disbursement).

"Help at Court" is a level of service the grant of which authorises help and advocacy for a client in relation to a particular hearing, without formally acting as legal representative in the proceedings.

"Legal Representation" is a level of service the grant of which authorises legal representation for a party to proceedings or for a person who is contemplating taking proceedings. This includes the following:

(i) Litigation services.

(ii) Advocacy services.

(iii) All such help as is usually given by a person providing representation in proceedings, including steps preliminary or incidental to proceedings.

(iv) All such help as is usually given by such a person in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings.

Legal representation does not include the provision of mediation or arbitration (but this does not prevent help being given in relation to mediation or arbitration, or the payment of a mediator's or arbitrator's fees as a disbursement).

• "Investigative Help" means Legal Representation which is limited to investigation of the strength of a proposed claim. Investigative Help includes the issue and the conduct of proceedings only so far as necessary to obtain disclosure of relevant information or to protect the client's position in relation to any urgent hearing or time limit for the issue of proceedings.
• "Full Representation" means a grant of Legal Representation other than Investigative Help.

"Support Funding" is a level of service the grant of which authorises the same services as Legal Representation, but which is limited to partial funding of proceedings which are otherwise being pursued privately, under or with a view to a conditional fee agreement.

• "Investigative Support" means Support Funding which is limited to investigation of the strength of a proposed claim with a view to a conditional fee agreement.
• "Litigation Support" means a grant of Support Funding other than Investigative Support. It covers partial funding of high cost litigation proceeding under a conditional fee agreement.

"Approved Family Help" is a level of service the grant of which authorises help in relation to a family dispute including assistance in resolving that dispute through negotiation or otherwise. This includes the services covered by Legal Help as well as issuing proceedings and representation in proceedings where necessary to obtain disclosure of information from another party, or to obtain a consent order following settlement of part or all of the dispute and related conveyancing work.

• "Help with Mediation" means Approved Family Help limited to advice to a client in support of family mediation, help in drawing up any agreement reached in mediation and where appropriate help in confirming such an agreement in a court order and related conveyancing work.
• "General Family Help" means a grant of Approved Family Help other than Help with Mediation.

"Family Mediation" is a level of service the grant of which authorises mediation of a family dispute, including assessing whether mediation appears suitable to the dispute and the parties and all the circumstances.

"Clinical Negligence Proceedings" means proceedings which include:

(i) a claim for damages in respect of an alleged breach of duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services); or

(ii) a claim for damages in respect of alleged professional negligence in the conduct of such a claim.

"Family Dispute" means a legal dispute arising out of a family relationship, including disputes concerning the welfare of children or which may give rise to Family Proceedings.

"Family Proceedings" means proceedings which arise out of family relationships, including proceedings in which the welfare of children is determined (other than judicial review proceedings). Family Proceedings also include all proceedings under any one or more of the following:

(a) the Matrimonial Causes Act 1973;

(b) the Inheritance (Provision for Family and Dependants) Act 1975;

(c) the Adoption Act 1976;

(d) the Domestic Proceedings and Magistrates' Courts Act 1978;

(e) Part III of the Matrimonial and Family Proceedings Act 1984;

(f) Parts I, II and IV of the Children Act 1989;

(g) Part IV of the Family Law Act 1996; and

(h) the inherent jurisdiction of the High Court in relation to children.

"Special Children Act Proceedings" means proceedings under the Children Act 1989 (other than appeal proceedings) where Legal Representation is applied for on behalf of:

(i) a child in respect of whom an application is made for an order under

(a) Section 31 (a care or supervision order);

(b) Section 43 (a child assessment order);

(c) Section 44 (an emergency protection order); and

(d) Section 45 (extension or discharge of an emergency protection order).

(ii) any parent of such a child or person with parental responsibility for the child within the meaning of the 1989 Act;

(iii) a child who is brought before a Court under Section 25 (use of accommodation for restricting liberty) who is not, but wishes to be, legally represented before the Court.

"Other public law children cases" means public law proceedings concerning the welfare of children other than Special Children Act Proceedings or related proceedings (see Section 11.8) but including:

(i) appeals (whether interim or final) from orders made in Special Children Act Proceedings;

(ii) other proceedings under Part IV or V of the 1989 Act;

(iii) adoption proceedings, including freeing for adoption;

(iv) proceedings under the inherent jurisdiction of the High Court in relation to children.

"Prospects of Success" means the likelihood of the client obtaining a successful outcome in the proceedings, assuming the case were determined at trial or other final hearing. Guidance may give examples of what may constitute a successful outcome for different types of proceeding.

Different categories of Prospects of Success have the following meanings:

• "Very Good" means 80% or more;
• "Good" means 60%- 80%;
• "Moderate" means 50%- 60%;
• "Borderline" means that Prospects of Success are not Poor, but because there are difficult disputes of fact, law or expert evidence, it is not possible to say that Prospects of Success are better than 50%;
• "Poor" means clearly less than 50% so that the claim is likely to fail;
• "Unclear" means that the case cannot be put into any of the above categories because further investigation is needed.

"Likely Costs" means an estimate of the likely total gross costs to be incurred on behalf of the client to disposal of the proceedings. This includes counsel's fees, disbursements and any enhancement or uplift on costs. Where appropriate, costs should be calculated by reference to standard or prescribed remuneration rates set by the Lord Chancellor or the Commission. Likely Costs and all cost thresholds specified in the Code are exclusive of VAT.

"Likely Damages" means a realistic estimate of the size of any money award the client would receive if substantially successful at trial or final hearing, after allowing for any likely reduction through contributory negligence or otherwise. Likely Damages should be discounted (by anything up to 100%) if there is doubt as to whether the opponent will be able to pay the money award.

"the Act" means the Access to Justice Act 1999 and terms defined in the Act have the same meaning in the Code.

"Central Budget" means the budget set by the Lord Chancellor for the funding of very expensive cases in accordance with Code Procedures.

"Contract" means a contract with the Commission under which services are provided which are funded as part of the Community Legal Service.

"Excluded Services" means services which are excluded under Schedule 2 of the Act and are not covered by any direction or authorisation under section 6( 8) of the Act.

"Guidance" means guidance published by the Lord Chancellor or the Commission for the purpose of making decisions under the Code.

"Hague Convention" means the convention defined in section 1( 1) of the Child Abduction and Custody Act 1985.

• "European Convention" means the convention defined in section 12( 1) of that Act.
• "Hague Convention Countries" has the same meaning as in the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1979.
• "Maintenance Orders (Reciprocal Enforcement) Act 1972" means the Act as applied with such exceptions, adaptations and modifications as are specified in the 1979 Order.

"Immigration Adjudicator" and "Immigration Appeal Tribunal" mean the adjudicators and Tribunal referred to in Part IV of the Immigration and Asylum Act 1999.

"Multi- Party Action" or "MPA" means any action or actions in which a number of clients have causes of action which involve common issues of fact or law arising out of the same cause or event.

"the 1989 Act" means the Children Act 1989.

"Overwhelming importance to the client" means a case which has exceptional importance to the client, beyond the monetary value (if any) of the claim, because the case concerns the life, liberty or physical safety of the client or his or her family, or a roof over their heads.

"prescribed" means either set out in Regulations or specified by the Commission.

"Proceedings" means legal proceedings before any court, tribunal, arbitrator or panel in England and Wales, but mediation and any form of dispute resolution which cannot make a determination which is binding on the client do not count as proceedings.

"Public Authority" has the meaning given in section 6 of the Human Rights Act 1998.

"Regulations" means orders or regulations under the Access to Justice Act 1999.

"Special Cases Unit" means a unit established by the Commission under the Code Procedures whose functions include administering the central budget and issuing contracts in very expensive cases.

"Wider Public Interest" means the potential of the proceedings to produce real benefits for individuals other than the client (other than benefits to the public at large which normally flow from proceedings of the type in question).

Applications for funding will be considered under the General Funding Code except to the extent that different criteria are specified for specific categories of case or proceeding. Definitions and criteria for specific categories are given in sections 6 - 13 of these Criteria.

Where any issue arises as to which category a case falls into, the Commission will apply the criteria which appear to it to be most relevant to the substance of the application.

Where it appears to the Commission that an application for Legal Representation or Support Funding relates to proceedings covering more than one category, the Commission may apply the criteria which appear to it most appropriate to the proceedings as a whole. If proceedings have not been started, the Commission may consider each aspect of the case under the criteria relevant to it and may apply appropriate restrictions on any grant.

The Commission will refuse an application for Legal Representation if, in the view of the Commission, effective representation cannot be provided in the proceedings without the provision of excluded services.

Guidance may give examples of descriptions of proceedings in particular case categories.

Cases within the scope of section 11.14 shall be subject only to the criteria in that section (whether or not the proceedings in question are Family Proceedings).

The criteria in this section apply to all applications under the Code.

An application will be refused if it relates to law other than that of England and Wales, save where this is permitted by or under section 19 of the Act.

An application for the provision of excluded services will be refused.

Where an application relies upon a direction or authorisation under section 6( 8) of the Act the application will be refused if any conditions specified in the direction or authorisation are not satisfied.

An application will be refused unless it is for the benefit of a client who is an individual and who satisfies such other conditions as are specified in the Code Procedures.

An application will be refused unless the proposed supplier of services is of a description specified in the Code Procedures.

Where an application is for services which under the Code Procedures can be provided only under contract, the application will be refused unless the supplier has a contract and is permitted to provide those services under the terms of the contract.

An application may be refused or rejected if any Code Procedures have not been complied with.

An application will be refused unless the client is assessed as financially eligible under regulations, except where:

(i) under Regulations services are available without reference to means: or

(ii) Regulations or Code Procedures authorise services to be provided before completion of the financial assessment.

An application may be refused if it appears unreasonable to grant funding in the light of the conduct of the client in connection with this or any other application or in connection with any proceedings.

This section applies, in addition to the criteria in section 4, to any application for funding, save to the extent that different criteria are applied for specific categories of case or proceedings in sections 6 to 13.

Help may only be provided where there is sufficient benefit to the client, having regard to the circumstances of the matter, including the personal circumstances of the client, to justify work or further work being carried out.

Help may only be provided if it is reasonable for the matter to be funded out of the Community Legal Service Fund, having regard to any other potential sources of funding.

The criteria for Legal Help apply to an application for Help at Court, in addition to the following two criteria.

Help at Court may only be provided if the nature of the proceedings and the circumstances of the hearing and the client are such that advocacy is appropriate and will be of real benefit to the client.

Help at Court may not be provided if the contested nature of the proceedings or the nature of the hearing is such that, if any help is to be provided, it is more appropriate that it should be given through Legal Representation. 5.4 Standard Criteria for Legal Representation and Support Funding

The following criteria apply to all applications for Legal Representation or Support Funding, in addition to the criteria relevant to the specific level of service applied for.

An application may be refused if alternative funding is available to the client (through insurance or otherwise) or if there are other persons or bodies, including those who might benefit from the proceedings, who can reasonably be expected to bring or fund the case. For the purpose of this criterion only, alternative funding does not include funding by means of a conditional fee agreement.

An application may be refused if there are complaint systems, ombudsman schemes or forms of alternative dispute resolution which should be tried before litigation is pursued.

An application may be refused if it appears premature or if it appears more appropriate for the client to be assisted by some other level of service under the Code, such as Legal Help or Help at Court.

An application may be refused if it appears unreasonable to fund representation, for example in the light of the existence of other proceedings or the interests of other parties in the proceedings to which the application relates.

An application will be refused if the case has been or is likely to be allocated to the small claims track.

Legal Representation may only be granted as a matter of urgency where it appears in the interests of justice to do so.

Where only limited information is available to determine whether the criteria for Legal Representation are satisfied, emergency representation may be granted only if it appears likely on the information available that those criteria would be satisfied.

Investigative Help may be refused if the nature of the case and circumstances of the client are such that investigative work should be carried out privately with a view to a conditional fee agreement or that funding should take the form only of Investigative Support.

Investigative Help may only be granted where the prospects of success of the claim are uncertain and substantial investigative work is required before those prospects can be determined. Guidance may indicate what constitutes substantial investigative work for this purpose.

If the client's claim is primarily a claim for damages and has no significant wider public interest, Investigative Help will be refused unless the damages are likely to exceed £5,000.

Investigative Help may only be granted if there are reasonable grounds for believing that when the investigative work has been carried out the claim will be strong enough, in terms of prospects of success and cost benefit, to satisfy the relevant criteria for Full Representation.

If the nature of the case is suitable for a CFA, and the client is likely to be able to avail himself or herself of a CFA, Full Representation will be refused.

Full Representation will be refused if:

(i) prospects of success are unclear;

(ii) prospects of success are borderline and the case does not appear to have a significant wider public interest or to be of overwhelming importance to the client; or

(iii) prospects of success are poor.

If the claim is primarily a claim for damages by the client and does not have a significant wider public interest, Full Representation will be refused unless the following cost benefit criteria are satisfied:

(i) if prospects of success are very good (80% or more), likely damages must exceed likely costs;

(ii) if prospects of success are good (60% - 80%), likely damages must exceed likely costs by a ratio of 2: 1;

(iii) if prospects of success are moderate (50% - 60%), likely damages must exceed likely costs by a ratio of 4: 1.

If the claim is not primarily a claim for damages (including any application by a defendant or a case which has overwhelming importance to the client), but does not have a significant wider public interest, Full Representation will be refused unless the likely benefits to be gained from the proceedings justify the likely costs, such that a reasonable private paying client would be prepared to litigate, having regard to the prospects of success and all other circumstances.

If the claim has a significant wider public interest, Full Representation may be refused unless the likely benefits of the proceedings to the applicant and others justify the likely costs, having regard to the prospects of success and all other circumstances.

Investigative Support may only be granted where the prospects of success are uncertain and the reasonable costs of investigating the claim to determine prospects of success are such that:

(i) disbursements (including counsel's fees) are, or are likely to exceed, £1,000; or

(ii) investigative costs at prescribed rates other than disbursements have reached or are likely to exceed £3,000.

Investigative Support will be refused unless the damages are likely to exceed £5,000;

Investigative Support may only be granted if there are reasonable grounds for believing that when the investigative work has been carried out the claim will be strong enough, in terms of prospects of success and cost benefit, to proceed privately, together with Litigation Support if appropriate.

Litigation Support will be refused unless the form of the conditional fee agreement is satisfactory and complies with any relevant conditions set out in Code Procedures.

Litigation Support will be refused unless the conditional fee agreement will be supported by satisfactory insurance cover or equivalent arrangements in accordance with Code Procedures.

Litigation Support will be refused unless the reasonable costs of the litigation, including the costs of the investigative stage but excluding any sums already funded by the Commission or other bodies, are such that:

(i) disbursements are or are likely to exceed £5,000; or

(ii) the costs of the case at prescribed rates, excluding disbursements, have reached or are likely to exceed £15,000, but the Commission may vary the above threshold if satisfied that the case has a significant wider public interest.

Litigation Support will be refused if the prospects of success are unclear, borderline or poor.

Save where the case has a significant wider public interest, Litigation Support will be refused unless the following cost benefit criteria are satisfied:

(i) if prospects of success are very good (80% or more), likely damages must exceed likely costs;

(ii) if prospects of success are good (60% - 80%), likely damages must exceed likely costs by a ratio of 2: 1;

(iii) if prospects of success are moderate (50% - 60%), likely damages must exceed likely costs by a ratio of 4: 1.

If the claim has a significant wider public interest, Litigation Support may be refused unless the likely benefits of the proceedings to the applicant and others justify the likely costs, having regard to the prospects of success and all other circumstances.

Levels of service other than those provided for in the General Funding Code or elsewhere in these criteria may be funded only if a specific order or direction from the Lord Chancellor so provides, and then only in accordance with the terms of the order or direction.

An application for such services may be refused if it appears unreasonable in all the circumstances to grant it.

This section applies to applications or certificates for Legal Representation or Support Funding which have been referred to the Special Cases Unit in accordance with Code Procedures.

All Criteria relevant to the level of service and category of case in question shall apply, as modified in this section, in addition to the Criteria set out in this section.

Funding may be refused if the proposals put forward for progressing the litigation including proposals as to cost do not appear to the Commission to be satisfactory.

Subject to 6.5 below, funding will be refused or deferred unless it appears reasonable for funding to be granted in the light of the resources available in the Central Budget and likely future demands on those resources.

The Affordability criterion in 6.4 shall not apply to:

(i) Special Children Act Proceedings;

(ii) judicial review proceedings under section 7 of the Criteria in which funding is to continue by virtue of criterion 7.5.2;

(iii) other proceedings in which the life or liberty of the client is at risk.

Where a clinical negligence case (as defined in section 9) is referred under this section for the cost benefit ratio specified at criterion 9.3.2( iii) (minimum cost benefit ratio where prospects of success are moderate) there shall be substituted a ratio of 4: 1.

This section applies to applications for Legal Representation in relation to court proceedings concerning public law challenges to the acts, omissions or decisions of public bodies, including in particular challenges by way of judicial review or habeas corpus and proceedings under Part VII of the Housing Act 1996.

Criteria 5.6.1 (potential for a conditional fee agreement) and 5.6.3 (minimum damages level) do not apply to applications for Investigative Help under this section.

An application may be refused if the act or decision complained of in the proposed proceedings does not appear to be susceptible to challenge.

Investigative Help may be refused if there are administrative appeals or other procedures which should be pursued before proceedings are considered.

If, at the time the application for funding is made, the court has not granted permission to bring the proceedings or if according to rules of court such permission is not required, the criteria in section 7.4 apply. If at the time the application is made the court has granted permission, the criteria in 7.5 apply.

The following criteria replace those in section 5.7 of the General Funding Code.

An application may be refused if the act or decision complained of in the proposed proceedings does not appear to be susceptible to challenge.

Full Representation may be refused if there are administrative appeals or other procedures which should be pursued before proceedings are considered.

Full Representation will be refused unless the proposed respondent has been given a reasonable opportunity to respond to the challenge or deal with the applicant's complaint, save where this is impracticable in the circumstances.

Full Representation will be refused if the prospects of successfully obtaining the substantive order sought in the proceedings are:

(i) unclear;

(ii) borderline and the case does not appear to have significant wider public interest, to be of overwhelming importance to the client or to raise significant human rights issues; or

(iii) poor.

Full Representation may be refused unless the likely benefits of the proceedings justify the likely costs, having regard to the prospects of success and all other circumstances.

The following criteria replace those in section 5.7 of the General Funding Code.

If the case has a significant wider public interest, is of overwhelming importance to the client or raises significant human rights issues, then, provided the standard criteria in Section 4 are satisfied, funding shall be granted save where, in light of information which was not before the court at the permission stage or has subsequently come to light, it appears unreasonable for Legal Representation to be granted.

Where the case does not appear to have a significant wider public interest, to be of overwhelming importance to the client or to raise significant human rights issues, Legal Representation will be refused if:

(i) prospects of success are borderline or poor; or

(ii) the likely benefits of the proceedings do not appear to justify the likely costs having regard to the prospects of success and all the circumstances.

This section applies to applications for Legal Representation in relation to proceedings or proposed proceedings against public authorities concerning serious wrong- doing, abuse of position or power or significant breach of human rights, other than cases falling within the scope of section 7 (Judicial Review) or section 10 (Housing).

Criteria 5.6.1 (potential for a conditional fee agreement) and 5.6.3 (minimum damages level) do not apply to applications for Investigative Help under this section.

The following criteria replace the criteria in section 5.7 of the General Funding Code in applications to which this section applies.

Full Representation will be refused if:

(i) prospects of success are unclear;

(ii) prospects of success are borderline and the case does not appear to have a significant wider public interest, to be of overwhelming importance to the client or to raise significant human rights issues;

(iii) prospects of success are poor.

Legal Representation may be refused unless the likely benefits of the proceedings justify the likely costs, having regard to the prospects of success and all other circumstances.

This section applies to applications for Legal Representation in Clinical Negligence Proceedings.

Criterion 5.6.1 does not apply to applications under this section, unless the application relates to a multi- party action.

If the likely value of the claim does not exceed £10,000, Investigative Help may be refused if pursuing the NHS complaints procedure is more appropriate for the client than litigation.

Criterion 5.7.1 (refusal on grounds that the case is of a type suitable for a CFA) does not apply to applications under this section, unless the application relates to a multi- party action.

In applications to which this section applies, the cost benefit criteria set out in criterion 5.7.3 in the General Funding Code shall be replaced with the following:

(i) if prospects of success are very good (80% or more), likely damages must exceed likely costs;

(ii) if prospects of success are good (60% - 80%), likely damages must exceed likely costs by a ratio of at least 1.5: 1;

(iii) If prospects of success are moderate (50% - 60%), likely damages must exceed likely costs by a ratio of at least 2: 1.

This section applies to applications for legal representation for a client in proceedings which concern possession of the client's home, the client's legal status in the home, or the obligations of a landlord or other person to keep the client's home in good repair and allow quiet enjoyment of the property. However, this section does not apply to cases within the scope of section 7 (Judicial Review).

Criterion 5.6.1 does not apply to applications under this section.

In applications under this section the figure for minimum damages in criterion 5.6.3 shall be £1,000.

The following criteria replace those in section 5.7 of the General Funding Code for proceedings which concern possession of the client's home.

Full Representation will be refused if the client has no substantive legal defence to the proceedings or the prospects of successfully avoiding an order for possession (or, if the client is bringing proceedings, the prospects of obtaining such an order) are poor.

Full representation may be refused unless the likely benefits of the proceedings to the client justify the likely costs, having regard to the prospects of success and all other circumstances.

The following criteria replace the criteria in section 5.7 of the General Funding Code in applications within the scope of this section other than possession cases.

Where the client is applying for Full Representation to bring proceedings the application may be refused unless the landlord or other person responsible for dealing with the matters complained of has been notified of the client's complaint and given a reasonable opportunity to respond and put matters right, save where this is impracticable in the circumstances.

Full Representation will be refused if:

(i) prospects of success are unclear;

(ii) prospects of success are borderline and the case does not appear to have a significant wider public interest or to be of overwhelming importance to the client;

(iii) prospects of success are poor.

Full representation may be refused unless the likely benefits of the proceedings to the client justify the likely costs, having regard to the prospects of success and all other circumstances.

This section applies to applications for Approved Family Help, Family Mediation or Legal Representation in Family Proceedings.

Help with Mediation may only be granted if the client is participating in family mediation or has reached an agreement or settlement in family mediation and is in need of the services covered by Help with Mediation.

Help with Mediation may be refused if it is more appropriate for the client to be assisted by way of Legal Help.

Help with Mediation may only be provided where there is sufficient benefit to the client, having regard to the circumstances of the matter, including the personal circumstances of the client, to justify work or further work being carried out.

General Family Help will be refused if, in accordance with Code Procedures, the case must first be referred to a mediator for a determination as to whether mediation is suitable to the dispute and the parties and all the circumstances.

General Family Help may be refused if mediation, supported if necessary by Help with Mediation, is more appropriate to the case than General Family Help.

General Family Help may be refused if it is more appropriate for the client to be assisted by way of Legal Help.

General Family Help may only be provided where there is sufficient benefit to the client, having regard to the circumstances of the matter, including the personal circumstances of the client, to justify work or further work being carried out.

An assessment of whether mediation is suitable to the dispute and the parties and all the circumstances (" an intake assessment") may only be provided if the standard criteria in Section 4 are satisfied.

Mediation beyond the intake assessment may be provided only where the mediator is satisfied that mediation is suitable to the dispute and the parties and all the circumstances.

Investigative Help is not available in Family Proceedings. Legal Representation in Family Proceedings shall take the form only of Full Representation.

The criteria at Section 5.7 of the General Funding Code (criteria for Full Representation) and criterion 5.4.6 (small claims) do not apply to applications for Legal Representation in Family Proceedings.

Legal Representation shall be granted in Special Children Act Proceedings (as defined in Section 2) provided the relevant criteria in Section 4 are satisfied. The standard criteria in Section 5.4 of the General Funding Code shall not apply.

Where Legal Representation has been granted to a person in Special Children Act Proceedings, Legal Representation may also be granted for that person in related proceedings which are being heard together with the Special Children Act Proceedings or in which an order is being sought as an alternative to an order in the Special Children Act Proceedings.

The standard criteria for Legal Representation in Section 5.4 of the General Funding Code do not apply in other public law children cases, save for the following criteria:

(i) 5. 4.2 (refusal on the ground of the availability of alternative sources of funding);

(ii) 5.4.5 (refusal on the ground that representation is not necessary).

Where Legal Representation is sought on behalf of a client who is making or supporting an application or appeal, Legal Representation will be refused if the prospects of the application or appeal being successful are poor.

An application for Legal Representation may be refused if it appears unreasonable for funding to be granted, having regard to the importance of the case to the client and all other circumstances.

These criteria apply to proceedings seeking an injunction, committal order or other orders for the protection of a person from harm (other than public law children proceedings).

Legal Representation will be refused if the prospects of obtaining the order sought in the proceedings are poor.

Legal Representation will be refused unless the likely benefits to be gained from the proceedings for the client justify the likely costs, having regard to the prospects of obtaining the order sought and all other circumstances.

These criteria apply to proceedings concerning residence, contact and other private law issues concerning children (other than issues of financial provision).

Legal Representation will be refused, if in accordance with Code Procedures, the case must first be referred to a mediator for a determination as to whether mediation is suitable to the dispute and the parties and all the circumstances before Legal Representation can be provided.

Legal Representation may be refused if mediation, supported if necessary by Help with Mediation, is more appropriate to the case than Legal Representation.

Legal Representation may be refused unless reasonable attempts have been made to resolve the dispute without recourse to proceedings, through negotiation or otherwise.

Legal Representation will refused if prospects of success are poor.

Legal Representation will be refused unless the likely benefits to be gained from the proceedings for the client justify the likely costs, such that a reasonable private paying client would be prepared to take or defend the proceedings in all the circumstances.

These criteria apply to ancillary relief and other family proceedings concerning financial provision, and to all other family proceedings which are not covered by criteria elsewhere in this section.

Legal Representation will be refused if, in accordance with Code Procedures, the case must first be referred to a mediator for a determination as to whether mediation is suitable to the dispute and the parties and all the circumstances before Legal Representation can be provided.

Legal Representation may be refused if mediation, supported if necessary by Help with Mediation, is more appropriate to the case than Legal Representation.

Legal Representation may be refused unless reasonable attempts have been made to resolve the dispute without recourse to proceedings, through negotiation or otherwise.

Legal Representation will be refused if prospects of success are:

(i) borderline or unclear, save where the case has overwhelming importance to the client or a significant wider public interest;

(ii) poor

Legal representation will be refused unless the likely benefits to be gained from the proceedings for the client justify the likely costs, such that a reasonable private paying client would be prepared to take or defend the proceedings in all the circumstances.

Subject only to Section 4, Legal Representation shall be granted to a person whose application under the Hague Convention or the European Convention has been submitted to the central authority in England and Wales pursuant to Section 3( 2) or Section 14( 2) of the Child Abduction and Custody Act 1985 and on whose behalf a legal representative has been instructed in England and Wales in connection with the application.

This section applies to a person who:

(i) appeals to a Magistrates' Court against the registration of or the refusal to register a maintenance order made in a Hague Convention country pursuant to the Maintenance Orders (Reciprocal Enforcement) Act 1972 or;

(ii) applies for the registration of a judgment under Section 4 of the Civil Jurisdiction and Judgments Act 1982.

and who satisfies the criterion set out below.

Legal representation under this provision shall be granted if the standard criteria in Section 4 are satisfied and if the client benefited from complete or partial legal aid, other public funding or exemption from costs or expenses in the country in which the maintenance order was made or the judgment was given.

This section applies to applications for Legal Representation in proceedings before a Mental Health Review Tribunal under the Mental Health Act 1983 on behalf of a person whose case or whose application to the Tribunal is or is to be the subject of the proceedings.

Investigative Help is not available in applications under this section. Applications for Legal Representation under this section shall take the form of Full Representation.

The criteria in Sections 5.4 and 5.7 of the General Funding Code shall not apply to applications under this section (but this should not be taken as restricting the scope of the reasonableness criterion below).

An application may be refused if it is unreasonable in the particular circumstances of the case for Legal Representation to be granted.

This section applies to applications for Legal Representation for a client whose case is before an Immigration Adjudicator or the Immigration Appeal Tribunal, and any further appeals from that tribunal to the Court of Appeal or House of Lords

Investigative Help is not available in applications under this section. Applications for Legal Representation under this section shall take the form of Full Representation.

The standard criteria for Legal Representation in Section 5.4 of the General Funding Code apply to applications under this section, save for criterion 5.4.6 (small claims). The criteria for Full Representation under Section 5.7 of the General Funding Code do not apply to applications under this section.

Legal Representation will be refused if the prospects of achieving a successful outcome for the client are:

(i) unclear or borderline, save where the case has a significant wider public interest, is of overwhelming importance to the client or raises significant human rights issues; or

(ii) poor.

Save where the case has a significant wider public interest, Legal Representation will be refused unless the likely benefits to be gained from the proceedings justify the likely costs, such that a reasonable private paying client would be prepared to take the proceedings, having regard to the prospects of success and all other circumstances.

This section applies where funding has already been granted under the Code Criteria. Funding may be withdrawn in accordance with the following criteria and the Code Procedures. Code Procedures may in particular specify the grounds for withdrawal of emergency representation.

Funding may be withdrawn where the criteria under which funding was originally granted are no longer satisfied.

Funding may be withdrawn where it is unreasonable for funding to continue in all the circumstances of the case, taking into account the interests of the client, any wider public interest and the interest of the Community Legal Service Fund.

Investigative Help or Investigative Support will cease where it appears that sufficient work has been carried out to enable prospects of success to be determined. Investigative Support will also cease when a conditional fee arrangement is entered into.

Without prejudice to any of the above criteria, funding may be withdrawn:

(i) where the client has died;

(ii) where the client has had a bankruptcy order made against him or her;

(iii) on financial grounds, in accordance with Code Procedures and Regulations;

(iv) with the consent of the client;

(v) where all work authorised by the Commission has been completed;

(vi) where, in accordance with Code Procedures, it is unreasonable for funding to continue in the light of the conduct of the client.

NIACAB is the largest advice charity in Northern Ireland working against poverty, and meeting the information and advice needs of some 200000 people per year. The Association has formal links to CAB in England & Wales and close working relationships with Citizens Advice Scotland. Together the three Associations constitute the biggest advice network in Europe with 60 years of giving advice and information to the public.

The Association has funding relationships with 24 of N. Ireland's District Councils, and in the 12 months to March 2002 had a turnover of some £2.5m, of which the NIACAB Regional Office accounted for some £600,000.

53 per cent of CAB enquiries relate to social security of which Disability Benefits and Income Support are the largest categories. Queries to CAB have more than doubled in the last 10 years. In particular the trend to self assessment in benefits and the introduction of complex self assessment forms in respect of Disability Living Allowance, Incapacity Benefit and Job Seekers Allowance has, along with New Labour's policy of means testing access to benefit, greatly increased the demand for CAB's advice network. With the Welfare Reform Bill, and cross party support for means testing and the targeting of benefits, these trends are clearly set to continue.

Other trends include an increase in money advice and debt work following the deregulation of financial services in the late 1980's, and increased queries in the areas of consumer and employment advice. The increase in debt work has lead to some specialist debt advisers appearing in the Chancery Division of the High Court.

A quadrupling of CAB tribunal representation to some 1800 tribunals a year since 1991 has lead to the emergence of CAB as the largest single source of help for appellants in Northern Ireland.

The table below illustrates that in the 12 months to December 1999 a total of 11404 Social Security Appeal Tribunals and Disability Appeal Tribunals were heard in Northern Ireland. The importance of independent representation for the public is shown by the fact that of the 6181 cases presented without representation, 1785 or 29% were successful and 4396 or 71% were unsuccessful. Of the 5223 cases presented with representation 2807 or 53% were successful and 46% were unsuccessful. Independent representation therefore broadly lifts the chances of a successful appeal by a member of the public from 1in 3 to 1in 2. Despite the quadrupling of CAB's tribunal representation in Northern Ireland supported by a specialist post in NIACAB and specialist training which is accredited with the University of Ulster the level of unmet need remains clear with members of the public being unrepresented in 6181 or 54% of tribunal hearings.

The growth in CAB's advocacy work has lead to an increase in appeals to the Commissioners, an area of work which is supported by a specialist consultancy post in the NIACAB Regional Office.

Within the UK advice sector, NIACAB has pioneered the development of electronic information and advice, and retains a very clear vision of how new technology can be used to deliver advice and information to the public.

NIACAB administers a wide area network across Northern Ireland. This provides each CAB office with an electronic version of the CAB information system, a case recording and case management system, a discussion database, and an 'E' mail facility. The system uses ISDN lines to connect each Bureaux to all the others and to the regional office via a single central server. Computers are used in interview rooms with clients, information is updated by phone, and laptop computers are used for home visits. Cab is therefore closely aligned with formal government objectives in respect of TSN, the reduction of inequalities in health, and the provision of electronic information and advice to the public.

The Association is building on this work with the development of specialist databases for frontline advisers, the continuing development of its web site, the use of standard specifications across the network, and the use of specialist software for money advice and benefit calculations. A Frequently Asked Questions (FAQ) database is available on NIACAB's website, www.niacab.org.

The computerisation of NIACAB has made possible the development of new ways of working with some government departments. For example, we are now able to host a number of complex databases produced by The Department for Social Development, and make them available to local Cab offices across Northern Ireland. These include Social Security Legislation, Child Support Legislation, the Digest of Social Security Case Law, Reported Commissioners' Decisions dating back to 1978 and a Decision Makers Guide to Legislation. All the databases are updated daily via a dedicated modem link to the DSD server computer. This ensures a cost effective way for CABadvisers throughout Northern Ireland to have access to essential up-to-date legislation and case law to support their advocacy.

Advice is provided across both main communities, and to minority groupings, from 28 main offices and from some 100 other outlets. Advice is provided within the framework of 4 principles. The advice is

• Free at the point of use
• Impartial
• Confidential
• Independent

In the context of the Reform of Legal Aid, legal advice is defined as advice given about the law, rather than advice given by a legally qualified person. This definition allows for the funding of advice agencies by the Legal Services Commission. (LSC)

As detailed in the accompanying article from SCOPE May 2002, and the above statistics on tribunal representation, there is a large unmet need for advice in Northern Ireland. This is particularly so in the field of welfare law where few private legal firms are active.

Legal Aid was reformed in England & Wales several years ago, and in 2001/02, two hundred and twenty seven local CAB offices had standard legal aid contracts to the value of £21.7m, a figure expected to rise to £23m in the current financial year. Local CAB offices also receive funding for pilot court duty schemes, telephone advice lines, second tier advice, and for various partnerships from the Partnership Innovation Budget. The value of this funding is estimated as being in the region of £2-£4m per year.

The overall financial context of this is the Legal Services Commission's projected net payments from the CLS fund of £734m in 2001-02, with estimates of payments against legal help for not for profit agencies of £45m in 2001/02.

It will be seen from the above that the reforms have provided significant sums of additional funding for the advice sector in England and Wales.

Much of this funding has come by way of contracts. In Northern Ireland CAB holds a number of service level agreements with HSSTS, and District Councils, and would welcome the opportunity to undertake contracts on behalf of the Legal services Commission.

In England and Wales the Lord Chancellor's Department (LCD) established a kitemark for those wishing to participate in the Community Legal Service. Following negotiations with the LCD, CAB's membership scheme was adapted to provide a passport for CAB offices into the Kitemark, and these membership changes are currently being introduced in Northern Ireland.

The question of whether the LCD's kitemark is adopted in N. Ireland is obviously one for the Legal Services Commission when it is established, but CAB has no problem in principle in respect of the need to comply with standards determined by the LSC.

NIACAB would prefer to see ABWOR retained as a separate service, and extended to include representation at Social Security type tribunals. At present legal aid is only payable in respect of time spent in preparing for a tribunal but not in representation at the actual tribunal. Given the tribunal statistics outlined above, we feel that this is a huge area of need which should be addressed. Since cost is clearly an issue, an alternative is for the LSC to fund specialist posts in local advice agencies to undertake tribunal representation.

The areas identified are clearly linked to the traditional areas in which solicitors have practised, and CAB has no difficulty with the areas listed. As indicated above, however, the Association believes that funding should be available for representation in respect of proceedings at social security type tribunals, and that Schedule 2 of the Order could usefully be amended to include this.

NIACAB feels that the following areas of civil legal services should receive a high priority.

Provision of legal advice, information and assistance in respect of

• Social security regulations
• Proceedings in Social Security type tribunals including representation
• Social security - Proceedings in appeals to the Commissioner including representation

Provision of legal advice, information and assistance in respect of

• Consumer law
• Debt
• Consumer problems with the financial services industry

Provision of legal advice, information and assistance in respect of

• Employment Law
• Social & economic rights eg Minimum Wage
• Proceedings in employment tribunals including representation.

Provision of legal advice information and assistance in respect of Housing Law as it applies to

• Private sector housing
• Public sector housing

NIACAB feels that there should be consultation prior to the revisions to the Funding Code.

NIACAB is aware from its own work of a considerable unmet demand for legal advice in Northern Ireland particularly in respect of social security benefits, employment rights, and consumer issues in respect of debt and financial services. Those who use CAB have not generally been of interest to the legal profession, although there are now sign that some private firms are beginning to employ para legals to undertake cases in this area.

We welcome the potential to increase the funding available to the advice sector and the potential to increase the standard and quality of our work through the employment of legally qualified staff. We welcome the opportunity to engage in contracts with the LSC, and understand and accept the need to work to the standards which it will establish.

The proposed reform of Legal Aid is occurring at the same time as the DETI is bringing forward a consumer strategy for N. Ireland, and we hope that both of these initiatives will be co-ordinated with the DSD's Voluntary & Community Unit which has the lead responsibility within government for advice services.

14 June 2002

When I gave evidence to the committee recently, members asked me for some indicative financial figures in respect of any recommendations the Assembly might make in regard to the allocation of funding to civil legal aid and therefore to the advice sector.

Given the unmet demand which we discussed, I know that each of our offices could usefully deploy an additional 3 full time staff in respect of social security advice, debt advice, and tribunal representation. As indicated in the attached sheet this would require additional revenue of £2.1m per year.

This is a broad brush indication of an amount which we would find very helpful. However, for the committee it raises the issue of how the existing legal aid budget in Northern Ireland will be allocated as between criminal legal aid and civil legal aid. We have been unable to obtain any information on this and it is a matter which the committee might raise further with the NIO and the Court Service.

In respect of evidence of need, the following information is pertinent.

Social Security enquiries as a percentage of all enquiries to CAB rose from 36% in 1991 to 55% in 2001, and now constitute 100,000 queries per year.

The overall policy environment with the government's emphasis on means testing at the point of entry to the system and the introduction of an increasing range of tax credits leave little prospect of this area of work declining.

I am enclosing a copy of NIACAB's report on debt in N. Ireland "Would You Credit It?" Over 2 months in 2001, CAB offices in N. Ireland dealt with almost £5m of debt which £2.8m was accounted for by new cases. Official figures indicate that between 1995 and December 2001 consumer debt in the UK doubled to £140 bn. With interest rates at a 40 year low and personal borrowing at an all time high, it is clear that a rise in interest rates this year will precipitate a crisis in personal borrowing across the UK, with consequent pressure on advice agencies.

I am enclosing statistics which show that in the 12 months to December 2001 the Tribunal Service heard 8,420 social security related tribunals where the appellant was not represented. As the table shows the disparity in outcome between tribunals heard with representation and without representation is significant.

I hope this information is helpful and that you will contact me if you need any further clarification.

The continued demand for representation in tribunal centres across Northern Ireland has never been more evident. As can be seen from the above table, from January to December 2001 independent representation for the public at a tribunal lifts the success rate from 1 in 4 to 1 in 2

While some appellants may choose to be unrepresented at appeal hearings, the reality is that the demand for representation far outweighs what can be supplied by organisations such as CAB, whilst remaining the largest single source of representation in Northern Ireland.

NIACAB has continued to develop the organisation in this complex area of work with the introduction of a specialist consultancy post and specialist advocacy training that is accredited by the University of Ulster. This has led to the quadrupling of CAB's tribunal representation in Northern Ireland since 1991.

1. The Northern Ireland Human Rights Commission is a statutory body established under section 68 of the Northern Ireland Act 1998. Under section 69(1) of that Act it has a duty to keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights. Under section 69(3) the Commission has the duty, on such occasions as it thinks appropriate, to advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to protect human rights.

2. The Commission has maintained an interest in access to justice since its establishment on 1 March 1999. In its early months it gave detailed consideration to Public Benefit and the Public Purse: Legal Aid Reform in Northern Ireland, the consultation paper issued by the Northern Ireland Court Service in June 1999. In October 1999 the Commission held a roundtable discussion with key interested players in the justice system and it met with the relevant Government Minister at the time, Mr David Lock. In November 1999 the Commission made a substantial written submission to the Court Service on the consultation document. The Commission noted with interest the publication of the Government's Decisions Paper, The Way Ahead, in September 2000.

3. The Commission hopes to make a more detailed response in due course (by 22 July 2002) to the proposal for a draft Access to Justice (NI) Order 2002. The current preliminary comments have been prepared in some haste in order to meet the deadline set by the Northern Ireland Assembly's Ad Hoc Committee which is examining the draft Order.

4. The Human Rights Commission welcomes the proposal to establish a Northern Ireland Legal Services Commission. We believe that it is proper that the Law Society, whose members benefit from publicly-funded legal services, should not be in control of how those funds are distributed. We would like to see an amendment made to article 4(5) of the draft Order, which requires the Lord Chancellor to secure that the members of the Legal Services Commission are representative of the community in Northern Ireland, to make it clear that "representative" does not just refer to religious and political differences but also to gender, racial and social differences. The requirements of section 75 of the Northern Ireland Act 1998 should also be borne in mind in this context.

5. The Human Rights Commission would also like to see the draft Order amended so that it requires the appointment to the Legal Services Commission of at least one member who has a demonstrable expertise in human rights law.

6. The Human Rights Commission welcomes the duties imposed upon the Legal Services Commission by the proposed article 6. We would, however, like to see more detail included here as to the length of planning periods, the regular publication of draft and actual plans and the arrangements required for consulting on draft plans. We believe a duty should be imposed on the Legal Services Commission to consult widely on the extent of unmet legal need.

7. We also welcome the powers imposed upon the Legal Services Commission by the proposed article 7. A great deal will obviously depend on how these powers are exercised by the Commission. The Human Rights Commission is in favour of legal fees being kept at a reasonable level. They must not, however, be so low as to be completely unattractive to legal practitioners who would otherwise work only in the privately-funded sector.

8. The Human Rights Commission is at present unclear as to the implications of the exclusion of the ABWOR scheme (assistance by way of representation) from the proposed civil legal services that are to be made available. Paragraph 2 of Schedule 2 seems to include most if not all of the situations where ABWOR is currently available, so we are unsure whether the exclusion of ABWOR per se will make any substantial difference. We need to obtain clarification on this point from the Government.

9. The Human Rights Commission has a concern that the exclusion of election petitions from the range of available civil legal services (see paragraph 3(d) of Schedule 2) would mean that important electoral rights (protected by Article 3 of Protocol 1 to the European Convention on Human Rights, incorporated into our law by the Human Rights Act 1998) could not be vindicated with the assistance of publicly-funded legal services. We believe that electoral rights are too important to be ineligible for such assistance.

10. The position of the Human Rights Commission is that publicly-funded legal services should be available - provided certain conditions are met - both at inquests and at hearings before industrial tribunals. The Government has already put in place an ex gratia legal aid scheme for coroners' inquests in Northern Ireland, but we have doubts over whether this is operating fairly. Our policy has long been that the ordinary civil legal aid scheme should be extended to coroners' inquests. As far as industrial tribunals are concerned, we approve of the recent reforms in Scotland whereby civil legal aid can be made available in some situations. It may be that the proposed Legal Services Commission will be able to make funds available to an agency which supplies legal advice and/or representation at industrial tribunals, but if this is so it is not apparent from the draft Order or from the Explanatory Document.

11. The Human Rights Commission is not in favour of allowing the Legal Services Commission to contract out the provision of legal services (article 12 of the proposed Order). We do not believe that contracting will necessarily enhance the quality, choice and accessibility of legal advice and assistance in Northern Ireland. We concede, however, that everything depends on how the contracting is operated in practice. Much will have to be done to monitor compliance with quality controls and not to allow budgetary considerations to adversely affect, for example, the unmet legal need of those living in isolated parts of Northern Ireland.

12. While the Human Rights Commission has no objection in principle to the proposed Funding Code (article 15), we require more time to investigate whether the way in which the Funding Code has operated to date in England and Wales has been satisfactory. We are certainly of the view that the proposed article 15(6) of the draft Order requires to be amended so that it ensures that a high quality of consultation occurs.

13. When the Human Rights Commission made its response to Public Benefit and the Public Purse we stated that we considered that a system of fixed budgets, even for civil cases, would offend against the interpretation of Article 6(1) of the European Convention on Human Rights adopted by the European Court of Human Rights, since the system would fail to allow for the flexibility to fund a case where the situation of the applicant and the nature of the case require the grant of funding. We remain of that view, although we admit that the case-law of the European Court is not too detailed on this point.

14. In the list of factors which the proposed article 15(2) sets out as having to be considered by the Legal Services Commission when settling the criteria to be contained in the Funding Code, the Human Rights Commission would wish to see inserted (as a new sub-paragraph (a)) "the United Kingdom's obligations under international human rights law". It is not enough to argue that, as a public body, the Legal Services Commission will in any event be required to comply with the European Convention on Human Rights as incorporated by the Human Rights Act 1998, for there are many other relevant international human rights standards signed up to by the UK Government (e.g. Article 14(3)(a) of the UN's Covenant on Civil and Political Rights (1976) and Principle 3 of the UN's Basic Principles on the Role of Lawyers (1990)).

15. As regards the types of cases which should be treated as priority areas for funding under the Funding Code, the Human Rights Commission would be concerned if the compiling of priorities was in any way influenced by the Lord Chancellor's Department, given that the Government itself may be a potential defendant in many instances. Article 15(7) of the proposed Order is therefore worrying (the more so as it does not seem to be "explained" in the accompanying Explanatory Document) because it appears to suggest that the Lord Chancellor may require the Legal Services Commission to apply the Funding Code in whatever way the Lord Chancellor requires. We would be glad of a reassurance, at least, from the Government that this order-making power is not intended to allow the Lord Chancellor to influence the Legal Services Commission's choice of priorities. We would also be pleased to hear that the Lord Chancellor's approval of the Code (required under the proposed article16) will not be withheld on the ground that the Lord Chancellor disagrees with the Legal Services Commission's choice of priorities.

16. The Human Rights Commission naturally believes that human rights cases should be treated as top priority for the Legal Services Commission's Funding Code.

17. Article 15(2)(d) states that one of the criteria to be set out in the Funding Code must be "the availability to the individual of services not funded by the Commission and the likelihood of his being able to avail himself of them". As the Human Rights Commission is a statutory body which itself has the power to grant assistance to individuals, we feel it is important that the Funding Code should not exclude an individual from eligibility for civil legal services merely because the Human Rights Commission is available, in theory, to grant assistance. The reality is that the likelihood of the Human Rights Commission granting assistance is small (given, amongst other matters, the pressure on our resources). We are currently in the process of negotiating a Memorandum of Understanding with the Legal Aid Department to formalise an informal arrangement which already operates between our two organisations. Some such Memorandum will probably also be required between the Human Rights Commission and the proposed Legal Services Commission. The Equality Commission may require some sort of Memorandum too. It is arguable that the draft Order should make provision for such Memoranda.

18. The Human Rights Commission is pleased that the budget for criminal defence services will not be an absolute one and is content that the criminal proceedings formerly covered by the ABWOR scheme will, under the draft Order, be fundable out of the proposed new budget.

19. We also approve of the proposal to create a Criminal Defence Service Code of Conduct, since this should help to maintain good quality services. We welcome the fact that the Code will require compliance with section 75 of the Northern Ireland Act 1998.

20. We regret that neither the draft Order nor the Explanatory Document make reference to the provisions in international human rights law concerning legal aid for persons accused of criminal offences. On occasions these provisions permit a person to choose his or her own legal representative in criminal proceedings. The draft Order gives to the Legal Services Commission the power to determine the number and description of legal representatives in a criminal case. The Human Rights Commission fears that this may constrain a person's freedom of choice and therefore breach (for example) Article 14(3)(a) of the UN's Covenant on Civil and Political Rights.

21. As regards the possible registration of persons providing funded legal services (the proposed article 37), the Commission notes that there appears to be no provision allowing for appeals against a refusal to allow, or against a decision to cease to allow, registration.

1.1 This Briefing Note is submitted at the invitation of the Northern Ireland Assembly Ad Hoc Committee ("the Committee") for purposes of that Committee's consideration of the future arrangements for publicly-funded legal services in Northern Ireland, as reflected in the draft Access to Justice (N.I.) Order.

1.2 The Briefing Note sets out the position of the Law Society of Northern Ireland ("LSNI") in respect of the Government proposals. We are appreciative of the opportunity to contribute to the work of the Committee. We offer this evaluation of the Government proposals from the distinctive professional perspective and experience of solicitors who have been in the front-line of provision of legal services since the inception of the Legal Aid Scheme.

1.3 As the Committee will be aware, the Government proposals were preceded by several consultation exercises, of which the most recent was entitled "Public Benefit and the Public Purse" (June 1999). This was followed by a Decisions Paper ["The Way Ahead: Legal Aid Reform in Northern Ireland" (Sept. 2000)]

1.4 This Briefing Note is divided into 4 sections which broadly follow the subject headings set out in the Decisions Paper. For case of reference we have included cross-references to provisions in the draft Order:

(a) The Northern Ireland Dimension;

(b) Administrative Arrangements (Articles 3-9 and Schedule1);

(c) Cost Issues (including alternative funding options, and the criminal legal aid proposals) (Articles 38-44, 47, 21-24);

(d) Quality Standards (Article 37).

1.5 One other preliminary observation may be of assistance. Despite the prior period of consultation, there is a sense in which the reform proposals remain a work-in-progress. Although the draft Order provides an outline, a great deal of detail is missing. For example in at least three of the critical areas (setting of costs levels and the Funding Code; setting of quality standards; and alternative funding arrangements) the Order proceeds by providing exceptional and extensive powers reserved either to the Lord Chancellor or the proposed new Legal Services Commission ("LSC").

1.6 Similarly the draft Order indicates that some of the major measures are proposed as contingent legislation to provide for fall-back positions in the event that the proposals do not go according to plan. This is an approach about which we have serious reservations, particularly given the intention to legislate by way of the Order in Council procedure.

1.7 It is necessary to make these points first because, in an important sense, these as fundamental matters are of considerable importance in assessing the acceptability or otherwise of the proposals. We note, and welcome the commitment made by the relevant Minister in the context of the Decisions Paper that the views of the N.I. Assembly would be given weight.

2.1 Throughout the consultation process, the Government has espoused a willingness to find Northern Ireland solutions to Northern Ireland problems. Most recently:

"....we recognise that the legal services landscape in Northern Ireland has a number of distinctive features and we indicated the Government's commitment to recognition of the Northern Ireland legal services culture which is distinct from that in England. ... the Government stated intention is to modernise the administration and provision of publicly-funded legal services in Northern Ireland by delivering local solutions to local problems." (Foreword, "The Way Ahead").

2.2 Again, quoting from the initial Consultation Paper the Government has affirmed that the reform program (stated to derive from the "modernisation" agenda) is directed to the objectives set out at para. 17 of the Decisions Paper:

2.3 With respect to the Government position, this statement of objectives is in no meaningful sense radical or modern. These objectives have informed the structure and operation of the legal aid scheme, probably since its inception and certainly in the past decade. There may be scope of course for argument as to the imperfect achievement of those objectives, or the effectiveness of the mechanisms by which they can be achieved, but there is unlikely to be any major disagreement as to the common sense of the objectives.

2.4 We share, of course, the aspiration that any reforms implemented in Northern Ireland should be related to the context and culture of legal services provision in the Province. Nor do we devalue the extent to which the Decisions Paper purported to take account of the Northern Ireland context. However, we think there is good reason to suggest: that the extent to which the distinctive nature of the Northern Ireland legal landscape has been understood is limited and superficial; and that the overall package of reforms has been driven by same false a priori assumptions, particularly that the starting-point for reform is the same as in England & Wales. More particularly the terms of the draft Order as now published cast some doubt on the commitment of the Government to engage seriously with this distinctive N.I. dimension. As a result we believe there is good reason to think that the proposed reforms in several key respects have within them the seeds of destruction of what have been widely-recognised as the peculiar strengths of the Northern Ireland arrangements for access to justice.

2.5 A full understanding of these distinctive features is vital if the stated intention of the Government is to amount to more than a token and cosmetic adaptation of the English agenda.

2.6 While there are many respects in which Northern Ireland practice is different, we believe it will be of most help to the Committee to concentrate on two areas to provide a suitable backdrop against which to develop an informed critique of the Government proposals. These areas are:

(a) the network of small local community-based firms providing access to a wide-range of general legal aid and advice services;

(b) the cost effectiveness, in absolute and comparative terms, of the legal aid and advice services provided under the current legal aid system.

2.7 In respect of the network, the total number of solicitors in private practice in Northern Ireland is 1650. They operate in some 500 practice units. Just under 50% are sole principals (who may, of course, have employed assistant solicitors). Another 25% are 2-principal firms. Just under 90% are in partnerships of 3 principals or less. All the available evidence suggests that a wide range of advice services is being provided at reasonable cost. The value of this network has been widely-recognised, including, in some limited respects, by the Government. Yet in several other respects the Government proposals, whether intentionally of otherwise, have the potential to seriously damage or destroy this community-based legal service.

2.8 The Government has espoused development of specialisms in areas of work where the need for specialisation has not been established. In part this may be a function of Government scepticism about the ability of small (one or two solicitor) practices being able to provide a quality level of service across a wide range of legal issues. We wish to refute this scepticism in clear terms. In the vast majority of instances it should be possible to provide for any necessary proven degree of enhanced expertise by other means while preserving the general-practice nature of the bulk of solicitors work (whether by continued access to the Bar, or as is increasingly the case, by referral arrangements between solicitors). Northern Ireland is different: the Government proposal is as in England and Wales.

2.9 The Government espouses the role of a bulk purchaser of legal services on behalf of the tax payer, an argument which makes sense only if services are to be supplied through bulk service-providers. Northern Ireland is different: the Government proposal is as in England and Wales.

2.10 The Government espouses a system de facto of duplicated and alternative regulation of solicitors small business units which is disproportionate, and is likely to produce an exodus of firms from the network, combined with a significant additional burden on the tax payer by way of the administrative costs of regulation by the Legal Services Commission. We repeat the warning in clear terms. The net effect of the proposals is that there is a high risk that the widespread and developed network of privately-capitalised and accessible advice units in Northern Ireland may constrict, with solicitors being obliged of necessity to disengage from unprofitable or low-margin work, with serious detriment to those who have ready access at present to the justice system. Northern Ireland is different. The Government proposals are as in England and Wales.

2.11 To avoid any misunderstanding on this point, we wish to make clear also that the LSNI has no interest in promotion of uneconomic or inefficient practices. Nor are we other than supportive of the development and funding of a more comprehensive range of advice services in conjunction with the voluntary sector. However, the opportunity should be taken to build on the strengths of the present Northern Ireland arrangements, particularly the ready-made network of community-based legal practices.

2.12 The extent to which there has been a failure by the Government to understand in any real depth the distinctiveness of this jurisdiction is exemplified by reference to the overall structure and shape of the reforms proposed. There is an apparent, if limited, recognition of the Northern Ireland Dimension within the Decisions Paper, such as the non-suitability of exclusive contracting. We are prepared at this stage to accept this recognition as given in good faith, but in each instance the recognition is limited and contingent, and the fallback provision is the "full-blown" English model. The structure, ethos and derivation of the proposals is transparently "the English solution". What is proposed, subject only to some conditional deferment, is unmistakably the English model, miniaturised in some modest respects. It is a regional adaptation of a national model, not a model designed for a distinctive, self-contained and parallel jurisdiction.

2.13 The second distinctive feature of Northern Ireland practice concerns costs. Within the overall rhetoric of reform, the Government has attempted, by the use of highly selective and unrefined statistics, to assert a major costs "problem" in Northern Ireland. This mantra has included overall unsustainable costs; absence of control; absence of value for money. In all cases the objective has been to assert a need for major reform, ostensibly in the interests of the tax payer, by creating the impression of a system which is expensive (in absolute and comparative terms) and inefficient.

2.14 It is in this respect that the Government approach is seriously wanting. Throughout the process of reform to date the Government has been unwilling to face up to the hard evidence which suggests strongly that the legal system and the frontline practitioners who service it within Northern Ireland, provide a good value, good quality product at a reasonable cost in the context of chronic under-funding. In one sense the Government's determination in this respect is explicable because it is clear that the identification of a "costs problem" is the key justification and driver for the reform proposals, as has been the case in England & Wales. Without it there may be every reason to suspect that the reform agenda is in fact more about costs-savings and Treasury imperatives than enhanced administration and improved access to justice.

2.15 This is why the Government consistently refers to the overall level of legal aid expenditure over the past 5-10 years, without any evinced serious intention of coming to grips with a proper understanding of the cost drivers and dynamics involved.

2.16 In absence of any refined understanding of the developing costs picture in Northern Ireland, what does the available hard evidence suggest? We would respectfully urge the Committee to pay special attention to this issue. All of the available evidence suggests that legal aid in Northern Ireland is not expensive by reference to the services and access to justice it delivers; and that there has been an historical tendency to under-fund legal services (whether provided by the private sector or the not-for-profit sector). In Northern Ireland the facts are these:

2.17 These figures are of considerable significance for a number of reasons. They demonstrate that the overall level of public expenditure on these services in Northern Ireland is consistently lower than the rest of the UK, despite the fact that it is generally accepted that the proportion of the population falling within the legal aid and advice eligibility limits may be higher here. The figures reflect also that, across a wide range of categories of legal advice and legal aid work, the per case cost in Northern Ireland is consistently lower than the rest of the UK.

2.18 In summary, all of the available evidence suggests that much of the reform process has been founded on some highly questionable premises as to the costs dynamic in a developing and increasingly sophisticated legal system.

2.19 We would invite the Committee to consider this alternative analysis of the core question at the heart of the Government reform agenda, which claims to be a Northern Ireland solution to a Northern Ireland problem: namely, what is the Northern Ireland problem? Further we invite the Committee to bear in mind this analysis and this core question when considering the examination below of the several strands of the reform programme (administrative arrangements: costs and funding reforms: and quality standards).

3.1 The Government proposes the establishment of a Legal Services Commission which will take over administrative responsibility for criminal and civil legal aid from the LSNI. It will be tasked also to take forward issues such as quality of work, research and pilots. The present arrangement for independent oversight (by way of the Lord Chancellor's Advisory Committee) will be abolished.

3.2 On the key proposal (transfer of administrative responsibility from the LSNI) we affirm again that we have no objection in principle. We welcome the Government's tribute to LSNI administration over some thirty-five years of operation of the Scheme, throughout a turbulent period of history and in the face of many difficulties.

3.3 We do not accept all of the reasons put forward by the Government for the transfer. For example, the conflict of interest asserted against the LSNI is misconceived. The fact that the LSNI has been required (on a voluntary basis) to wear two hats is not of necessity wrong in principle, nor unprecedented in British constitutional terms. It is less than fair to those who devised the Scheme in 1965 to suggest, under the guise of modernisation, that no thought was given to the implications of the present Scheme. It is clear in fact that, correctly researched and understood, the present arrangements were designed carefully to strike a proper and principled balance. That is why the primary role of the LSNI was defined and limited to the business of administration (not the development of policy). The power to legislate (by regulations) as to policy and the operation of the Scheme (including regulation of the costs to be paid) was vested in the Secretary of State (and latterly, since 1982, the Lord Chancellor), and specifically not the LSNI. An independent body (the Advisory Committee) was established to oversee and advise the Lord Chancellor on the LSNI administration of the Scheme and the efficacy of those arrangements.

3.4 We think it is misleading also to suggest that the administrative reforms made elsewhere in the United Kingdom some ten years ago were ignored or disregarded in Northern Ireland. The decision by the Government not to move to a Northern Ireland Legal Aid Board at that time was based on considerations of proportionality (that the costs of the Board administration might not be justified by reference to the benefits to be achieved) and that improved administration could be achieved by other means. This led directly to a number of important administrative reforms, agreed between Government and the LSNI, and now in train.

3.5 We do recognise and understand the widespread support for a new administrative settlement, and we can appreciate that it can inure for the benefit of the LSNI to have removed any misperceptions of conflict of interest. This is why we have never sought to retain administrative responsibility at all costs or as a matter of principle. Given this, we have not thought it necessary in this Briefing Note to rehearse the administrative development of the present Scheme in detail. We can expand of course on paragraphs 3.3 and 3.4 above as the Committee should require. Otherwise for present circumstances we intend to proceed on the assumption that a transfer of administrative responsibility to a new body of some kind will be implemented.

3.6 We need to confirm again, as we have done already to the Government, the LSNI commitment to work constructively with the Government in connection with any transfer ultimately sanctioned by Parliament. We have two objectives in mind here. First to ensure that the administrative reform programme on which we are embarked is continued through until the point of transfer, so as to ensure the administration is in good shape at hand- over. Secondly to ensure that the hand-over process itself will proceed as smoothly and efficiently as possible.

3.7 In the meantime, however, we think it necessary to signal some points of concern regarding the particular model proposed. We have some reservations as to whether the Legal Services Commission structure is proportionate to the scale and nature of the legal services issues in this jurisdiction. We have already suggested that the Northern Ireland "problem" (to which the Commission is part of the solution) is of a different order in some respects, or to a different degree in some others, than suggested by the Government.

3.8 To quote directly from the Parliamentary Secretary, speaking on publication of the Decisions Paper:

3.9 With respect, the administrative model proposed for Northern Ireland, as with so much of the reform package, is transparently a Westminster designed model. The list of responsibilities to be discharged by the proposed Commission is virtually indistinguishable from the English Legal Services Commission. The only modifications appear to relate to its size of membership, and a signalled intention by the Government that some of the powers to be conferred on the Commission are not expected to be exercised in the short-term.

3.10 It may be worth considering again whether this particular model is more elaborate than required for this jurisdiction. There are other simpler NDPB models which may be instructive and more suited for adaptation to this jurisdiction. This is not a reservation we make idly, for no purpose, or limited to considerations of value-for-money. Experience of direct rule in Northern Ireland shows that the creation of derivative structures will almost inevitably lead to derivative policies and practices. The relationship between major and minor models will lead to the adoption of policies and practices, under the direction of the same Minister (the Lord Chancellor) which are based on the same and mistaken premise that what is done in England and Wales should be done in Northern Ireland, in absence of justification to the contrary. We do not believe that this second-hand and derivative approach is right in principle, or suitable for Northern Ireland. This is why we suggest that it may be worthwhile for the model to be reviewed and critically evaluated to test whether a simpler model might not be implemented here which would secure the same objectives. Obviously this is a suggestion we would be willing to explore in more detail with the Committee.

3.11 Again, to avoid any misunderstanding on this point, we need to make clear that our objective is that any new administrative body should be able to operate cost-effectively in a way which secures genuine independence of judgment and operation.

4.1 Of the elements in the Government reform package, perhaps none displays more the fundamental deficiencies in the Government's approach and understanding than Chapter 5 of the Decisions Paper. We refer again to the points already made about the inadequate and unsatisfactory foundation on which these proposals are constructed. We point again to all of the available evidence which suggests that there remains a significant short fall in expenditure on publicly-funded legal services in this jurisdiction; that the widely-acknowledged efficiencies of the Northern Ireland legal process combined with the supply of a suitable range of services at reasonable cost produces an acceptable costs-model, within the terms of the present legislation, and on the remuneration and funding principles already in place.

4.2 These factors, combined with the absence of reliable research into the complex costs dynamic, suggests that the Government has no meaningful understanding of, or interest in, being put to the test of providing a proper rationale for the measures set out in Chapter 5.

4.3 Throughout the consultation process, and despite several attempts on the part of the LSNI to engage on this issue, the Government has refused to acknowledge the significance of the available costs evidence. Nor have we been given any real reason to think that the Government has any interest in establishing a more empirical basis before framing and implementing these costs proposals. We return again to another statement of intention by the relevant Minister:

4.4 By reference to these statements, we need to place on record that there is no material sense in which the range of powers and "solutions" proposed by the Government in Chapter 5 of the Decisions Paper differs from the proposals being implemented in England and Wales under the auspices of the Legal Services Commission there. A clue to the Government thinking and priorities can be found at paragraph 90 of the Decisions Paper. This paragraph needs to be read in the context of the facts we have already provided as to the actual cost-efficiency of the Northern Ireland system, and in a context in which there was an almost unanimous response from within Northern Ireland as to the unsuitability of exclusive block contracting for most categories of legal services in Northern Ireland because of the inevitable and serious detriment to those who need ready access to justice. The paragraph is worth quoting in full:

4.5 The LSNI does not have, and never has had, any difficulty with the principles of accountability for public funds and delivering value-for-money. We also have no difficulty in making commitments to work constructively with the Government on any costs, or indeed other, proposals for reform. The LSNI has never taken a dogmatic position against standard or scale fees. However, paragraph 90 suggests strongly that the Government had some pre-determined costs objectives which, if not achieved to the satisfaction of the Government (not the Legal Services Commission), will lead to the imposition of a "solution" which is acknowledged as wholly unsuitable for this jurisdiction.

4.6 Against this background, the LSNI considers that a proper and full explanation of the Government's public expenditure objectives needs to be made clear. Perhaps we can focus discussion on these matters by posing some questions (there may well be others) which the Government should be prepared to answer frankly and openly. These are as follows:

(a) what are the projected costs of setting-up the proposed Legal Services Commission?;

(b) what are the projected annual running costs of the proposed Legal Services Commission for the first three years following its establishment?;

(c) other than the costs associated with the establishment and running costs of the Commission, what does the Government project as the amount available over the first three years following implementation of each of the new budgets for civil non-family; civil family; and criminal?;

(d) what commitments have been made to, or parameters set by, HM Treasury for projected expenditure on legal aid advice and assistance in Northern Ireland over the next five years (commencing April 2001)?

4.7 In any event, for the reasons indicated, the LSNI remains unpersuaded either as to the need for, or the efficacy of, the costs reform measures set out in Chapter 5. There is no evidence in Northern Ireland that application of the "fair and reasonable remuneration" principle, now to be abandoned by the Lord Chancellor, has resulted in any unacceptable overall levels of public expenditure on legal services in Northern Ireland.

4.8 On the contrary, all of the evidence suggests that the operation of the present system and principles has resulted in lower per capita cost, and lower per case cost (and across a wide range of categories of case) than in the rest of the United Kingdom. This fact is of particular note and importance because the comparative costs being paid in the rest of the UK are determined by reference to criteria similar to those now proposed by the Lord Chancellor for introduction to Northern Ireland (see paragraph 55 of the Decisions Paper). The LSNI considers that this demonstrates again, and reinforces, the need to avoid wholesale and indiscriminate adoption of "solutions" from other jurisdictions in absence of any properly informed and convincing analysis of the need for reform in this jurisdiction.

4.9 By reference to the specific proposals in Chapter 5 (Funding Code, Standard Fees, etc.), much will depend upon the detailed working through of these proposals.

4.10 By reference to proposals for criminal legal aid, we refer the Committee to a separate Note annexed to this Briefing Note. We commend the position set out therein, both as an exemplar analysis of legal aid delivered through the network of practices in Northern Ireland and as a set of constructive proposals to address the Government's concerns in this particular area of expenditure.

4.11 Before addressing matters of detail, it is worth recording that we address the question of what funding alternatives might be found - and to what extent - in the context of the Government's policy decision to withdraw public funding, as far as possible, from cases warranting access to justice where those involve a compensation claim.

4.12 It is Government's position that others, principally the insurance market, should be able to bear the risk in its stead. And the only basis upon which such others might be prepared to bear the risk is that, on a swings and roundabouts basis, they are likely to make a profit. The Government had previously been providing indemnity in such cases on a not for profit basis. It has moved on to conclude that the expense is insupportable (a proposition which we consider to be highly questionable in Northern Ireland) and has therefore decided to let others take over, on a profit-orientated motivation.

4.13 The LSNI remains of the view that assuring access to justice for those of limited means with a reasonable cause of action is the responsibility of the community, through Government, in any civilised society. It has been the privilege of lawyers to assist toward that end up to now. Northern Ireland solicitors, in particular, have honoured the code and have delivered the service at an economic rate of pay, both in absolute terms and also as compared to anywhere else in the British Isles. Of course, as well as offering the insurance industry more money to take it away, the Government would also have liked to have offered more money to solicitors for the same reason. All this extra money on offer does not come from Treasury, which appears to be the key Government objective.

4.14 We continue to hold to the view that there is great danger for the public in relying upon the Insurance industry to deliver access to justice. We look at the situation which the Government has allowed to develop in England and Wales and we consider it to be deeply flawed.

4.15 We hold to the view that the unfettered freedom to choose one's own independent legal advisor is a critical element in countering the potential for exploitation and profiteering which is inherent in the process of opening financial claims to legal expenses entrepreneurs.

4.16 The Government acknowledges the distinctive culture in Northern Ireland, where solicitors typically supply legal assistance, funding and representation to the public in no-fault claims for free. Solicitors rely instead upon recouping their outlay and obtaining their fees at the end of the claim, from the opposing party's insurers. That has profound implications with regard to whether legal expense insurance is in fact necessary for individual claimants. Northern Ireland is different. The Government proposals are as in England and Wales.

4.17 This is already an active issue in Northern Ireland. Many people fall outside the very restrictive financial eligibility levels for legal aid. For many others, the contribution which may be levied under legal aid sharply exceeds the cost of alternative insurance arrangements. In addition, the cost of such after-the-event insurance will vary widely, from the reasonable to the exorbitant.

4.18 The public is entitled to independent advice as to whether they need to purchase funding arrangements at all and, if so, in what form and where. At present, they are being manipulated by passive sales techniques, by tied brokers and, increasingly, by advertising into commitments to particular insurance providers before being afforded access to independent advice.

4.19 One of the Society's core objectives in improving access to justice is to preserve the network of small, efficient law firms in the province. The established practice on the part of most Insurers in requiring that the insured uses only a solicitor nominated by the insurer is a serious threat to that network. Such panels have nothing to do with quality control. There is no Code of Practice. There are no known admission criteria, no tendering, no advertising. It all turns on the standard provision whereby the Insurer, not the insured, commands the choice of solicitor. By the Government's own admission, this is an immature and unregulated market.

4.20 That is the context in which the Government concedes in its Decisions Paper that ".the large number of small solicitors' practices providing a general service does provide a very different background for the introduction of CFAs than in England or Wales." It is the context in which it states that ".in practice, there is a long way to go before CFAs can be developed for Northern Ireland."

4.21 We prefer to say that the insurance providers have some way to go - some of them a very long way to go - before they can be regarded as offering a service which is appropriate for Northern Ireland and in the wider public interest.

4.22 It is necessary to be quite clear about what is at stake. It is not the preservation of work for lawyers: the work remains - it even grows in response to proactive advertising. Members of the Council of the Law Society presently report an excess of job vacancies for young solicitors, across the province. Individual firms on these Insurance panels will grow larger and need more staff. Solicitors who find the local supply of work in a critical sector to be drying up, will follow the work. The phenomenon taps into an underlying trend among the younger labour force to prefer city life anyway.

4.23 On the other hand, when the insurance industry has completed its work, created bulk suppliers of personal injury claims services, tied to individual insurers, where then the independent solicitors' profession and genuine access to justice?

4.24 The issue is about continuing to deliver wide-ranging legal services to the public throughout the province in an economic and efficient way. That is presently delivered by small practices providing a general service, in partnership with the Bar.

4.25 The draft Order contains provisions for the introduction of Conditional Fee Agreements (Articles 39-40) and privately-funded litigation arrangements (Articles 41 and 42) which are identical to what has been implemented in England and Wales. The position of the LSNI in relation to the potential workings of a publicly-funded Contingency Legal Aid Fund administered independently on a not-for-profit basis (perhaps by the Commission) is set out in the submission which accompanies this Briefing Note. It is not clear why this option has been rejected by the Government.

4.26 The second priority is that the public should be free to choose how to fund their litigation. We have already made the point that the Irish system includes free funding to the point of settlement, in no-fault claims.

4.27 The Decisions Paper was obscure at paras. 69 to 71, the key observations with regard to alternative ways of funding litigation. Taken at face value, the observations suggest that the Government had no intention of introducing CFAs in the short term, that CFAs and a CLAF are just two of a range of possibilities whereby ". a mature legal insurance market ." can be developed in Northern Ireland which will fund "appropriate" cases. This now seems to be in considerable doubt given the contents of Part III of the draft Order.

4.28 At this stage, the LSNI is involved in considering all options for future funding for money damages claims without prejudice to our fundamental position that unless the very major problems with all such alternatives can be resolved the Government should remain prepared to accept that legal aid funding should continue to be available to support this category of litigation.

5.1 The Society has no objection to the proposition that all legal service providers, including solicitors, who wish to provide legal services at public expense should be required to register with the Legal Services Commission. It was always the position under the Legal Aid Scheme that continuance of the right to supply such legal services was subject to the power of both the Society and, indeed, the Independent Disciplinary Tribunal, to exact a range of sanctions, up to and including removal from the Legal Aid Panel for unsatisfactory or improper services or conduct. This, therefore, is merely a concomitant part of the transfer of administration from the Society to the new Commission, so far as solicitors are concerned.

5.2 In his Foreword to the Paper, the Parliamentary Secretary of the time, David Lock, asserted that the Government is committed to recognising the distinctive Northern Ireland legal services culture and is intent upon delivering local solutions to local problems.

5.3 In the context of monitoring quality standards, it is the Society's contention that the Government has imported English solutions with a determination to find problems to fit them.

5.4 At the launch of the Decisions Paper, the Parliamentary Secretary expressed his approach in a slightly different way. He conceded that he had been informed that the quality of legal services in Northern Ireland was high, but the "problem" was that this was not subject to any form of verification. On that basis it has been deemed necessary to introduce a Code of Practice and more especially a regime of external audits and inspection by the Legal Services Commission.

5.5 No-one would wish to argue with the proposition that legal services must be of a consistently high quality. On the other hand, the Decisions Paper fails to explain why it is necessary to transfer quality assurance to an external regulator in order to achieve a credible process.

5.6 There is no reasonable basis for asserting that only persons who are obtaining legal services from solicitors with the assistance of taxpayer's money ought to expect that the service be of consistently high quality.

5.7 There is no effort made by Government to assert that it has found any cause to believe that the services presently provided to the public by solicitors in Northern Ireland is of unacceptable quality. The Lord Chancellor's Advisory Committee on Legal Aid in Northern Ireland and the Northern Ireland Human Rights Commission, for example, told it precisely the opposite. It has failed to listen. It has paid no attention to the favourable Users Survey contained in the Bloomfield Report on the Northern Ireland Criminal Injuries Scheme, the favourable Users Survey which is included in the Northern Ireland Consumer Council's Report on The House Buying Process, or the Northern Ireland Office of Law Reform's favourable Research Report on Matrimonial Law. These are the more recent independent appraisals and, notably, cover a range of different services supplied by small generalist practices.

5.8 It is likewise in the interests of taxpayers that new tiers of bureaucracy are not charged to public funds without demonstrable evidence that the investment is cost-effective; Government makes no effort to adopt a benchmark for itself, to state what is currently of an unacceptable standard from legal aid solicitors, and the extent to which it expects that the proposed initiative will ameliorate such a situation.

5.9 The proposal threatens to introduce, without justification, a new tier of external regulation for small businesses in a manner which, by its nature, will make no allowance for the existing extensive, demanding and effective levels of monitoring and discipline to which private practice solicitors are subject.

5.10 No weight has been given to the contention that the effective and proportionate way to secure quality standards from a mature, self-regulating but small profession of proven track record is to engage with its professional body in order to enhance current regulatory provision and monitoring - for the benefit of the public as a whole.

5.11 The declared decision, as framed, represents a serious derogation from the independence of a self-regulating profession; it effectively introduces a new regulator for solicitors and contrasts with decisions by Government with regard to other areas of quality assurance from the solicitors profession. As evidenced by sectors such as financial services and insolvency regulation, the principle of proportionality is well-established. That is, that there may be circumstances (particularly with reference to scale) in which it is more appropriate to operate through the mature, established professional body. In national terms, it is perhaps worth reiterating that the Government is embarked here upon the task of measuring a minnow.

5.12 The Society has welcomed the decision by Government, in the face of what is understood to have been widespread and independent criticism (with the possible exception of the not for profit sector), to set aside proposals to introduce contracting generally for legal aid solicitors in Northern Ireland. The Society believes that a widespread network of small, efficient and cost effective practices is the proper formula for this province. Solicitors already cope with an extensive range of regulation and monitoring in return for the privilege of serving the public. Where many firms, most especially outside the Greater Belfast area, will be involved with legal aid only for the purposes of the occasional petty sessions case, whether criminal or matrimonial, it is difficult to conceive that they will apply for registration with the new Legal Services Commission. It makes little sense for them to commit to the significant expense entailed in the Government's proposal for duplicated regulation.

5.13 The Society therefore predicts that if Government proceeds to introduce an external regulator of standards as envisaged it will significantly reduce the availability of legal services to the public, more particularly in rural areas, without the slightest demonstrable evidence that the quality of service previously available was anything less than suitable. This is the consequence of the Government choosing to play Doubting Thomas, wishing quality to be externally verified by resort to a third party regulator, despite all the available testimony.

5.14 At the most fundamental level, the Government's approach to the Northern Ireland system is inherently self-contradictory. It states that it has been persuaded that it is not feasible to introduce a system of franchising and contracts here. It has recognised that it cannot deliver bulk contracts to solicitors on a province-wide basis because there is an insufficient volume of casework in any category of civil law, in particular, to allow it to herd such work into a sharply reduced number of authorised providers without an unacceptable level of inconvenience and obstruction for the public seeking access.

5.15 On the other hand, bolted onto the alternative scheme, and with a very superficial rationale, is a feature with potential to cause many firms to conclude that the expense and trouble involved in continuing to supply a publicly-funded adjunct to their other business is simply not cost-effective.

5.16 This in fact is not an issue about quality assurance. It is an issue about proportionality and needless duplication. The Government has failed to acknowledge the logical consequence of the fact that it cannot deliver bulk casework to the existing network of small firms throughout the province. It insists upon trying to exact a price from each firm for the privilege of continuing to service legal aid work while, in the case of many firms, it cannot deliver such a volume of work as would make that price affordable.

5.17 A review of what has been engaging the Law Society even just over recent years demonstrates the fact that we are fully committed to ensuring a consistently high quality of service for the public.

• We have re-vamped our domestic Conveyancing quality-assurance scheme, the Home Charter, and made it compulsory for all Solicitors as from January 2001. It has been in operation on a voluntary basis for most of the last decade and involves a system of inspection just as the Government espouses for legal aid work. We note that the Government Homes Bill is, in effect, catching up with Northern Ireland in respect of this initiative, save that the "sellers pack" here does not include a survey report.
• January 2001 also saw the start of our compulsory professional education programme whereby we will reach the position that every practitioner will be required to undertake attendance at further education courses as an integral part of professional practice.
• Last year, we launched the first Advocacy Training course for solicitors. 25 solicitors, drawn from a heavily over-subscribed application list, completed a 9-month course of night classes on advanced evidence, followed by a week's intensive training run by the National Institute of Advocacy Training of America. This year's course is once again heavily over-subscribed
• We have produced a Client Care Code of Practice for Family Law practitioners (notwithstanding the fulsome praise extended in the Office of Law Reform's enquiry into present standards). Other Client Care protocols will follow.
• We have launched the Lexcel quality assurance scheme for Solicitors' practices and already have one firm through the process and duly accredited. Several others are in the pipeline.

5.18 The Society is a body with which Government could usefully engage, with a view to securing a Code for the various kinds of legal aid casework and in a way which is proportionate. Pending such engagement we are not able to make final judgements about the about the interface between professional standards and the standards to be required as a function of registration with the Legal Services Commission.

"I refer to our previous correspondence and discussions about the work of the Group which, under your Chairmanship, has accepted a commission from the Lord Chancellor to examine future personal injury claims funding options for Northern Ireland.

At our meeting on 2nd February 2001 we were able to provide some provisional feedback on the central issue which we understand to be the primary interest of the Working Group, namely the viability of a CLAF in this jurisdiction.

At that time we informed you also of our intention to canvass views more widely within the solicitors' profession. We appreciate the indications given by the Working Group as to the weight to be attached to the views of the Society, as representative of the profession with most practical experience of the operation and culture of civil litigation (and litigation funding) in the Province. I believe that all contributors to date have recognised the critical importance of this debate, given the widespread reservations expressed in Northern Ireland about the introduction of conditional Fee Agreements (and associated insurance arrangements) as they have developed in England and Wales, and bearing in mind also the apparent position of the Government, at least to date, that the only alternative to a CLAF is the imported CFA model.

Because of these factors we have thought it right to consult with the profession and, having done so, to reflect carefully on the main strands of the debate thus far. The purpose of this letter is to let you have our conclusions. I understand that your own work has been continuing, and I imagine that some points made in this letter may resonate with other submissions you have received. In any event I hope you will find our comments and suggestions helpful in finalising the report of the Working Group.

As a preliminary point, the position of the Society stated herein should be understood to be without prejudice to our fundamental concern about the proposed removal of civil legal aid funding in its present form. We are not persuaded that the case for this has been established (as opposed to the case for modification and improvement of the current Legal Aid Scheme, combined with a more-thorough examination of how unmet need falling outside the present Scheme might be otherwise addressed). Nonetheless we recognise the clearly-signalled intentions of the Government in this respect and therefore provide these comments on the working assumption that the government will proceed to remove the present form of civil legal aid funding from most categories of money- recovery claims.

The primary purpose of this letter is to set out for consideration of the Working Group our views on the viability of a CLAF. This being so, we do not propose to re-examine in any detail the case for and against the introduction of Conditional Fee Agreements. However, we affirm our serious reservations about the CFA model. For present purposes we need not rehearse the various concerns which have been articulated by a wide range of informed commentators in this jurisdiction. We do consider, however, that as time passes and experience builds in England and Wales, these concerns are reinforced rather than assuaged. In particular, it seems clear that the arrangements for handling of litigation are becoming the monopolistic preserve of the insurance industry with a steady and rapid erosion in the rights of the consumer to receive genuinely independent advice. This being so, we would to affirm specifically that we do not accept the Government proposition that there is not alternative to a CLAF in Northern Ireland other than the CFA model developed elsewhere.

Our views on the viability of a CLAF are informed by two critical assumptions, as follows:

(a) despite some ambiguity in the stated position of the Government (that any CLAF in Northern Ireland must be "comprehensive"), it seems to be recognised generally that this cannot mean that participation by any individual claimant in a CLAF can be compulsory (for human rights and other reasons). We do not think, for reasons of principle, that a model which requires a potential litigant to choose between a "CLAF solicitor" and a "non-CLAF solicitor", and/or which puts the solicitor in the position of not being able to offer best advice to a potential client as to the available full range of funding options, is right or indeed viable in practice. We do not consider that the acknowledged problem of "adverse selection" can be solved by this model. It follows from all of this that any CLAF model will need to be genuinely competitive in the market as against the existing insurance-funded options, and as against the common practice (dictated by the market) whereby solicitors provide clients with no-cost litigation, typically in motor accident cases where damages recovery is guaranteed or highly probable;

(b) the second critical assumption is that whatever CLAF model might be devised for Northern Ireland will be unique and experimental. Unique in the sense that none of the paradigms from elsewhere would appear to be an unqualified success, and where there is some measure of success this appears to be linked to a percentage recovery from damages which is unlikely to be viable or competitive in the Northern Ireland context. The experimental nature of this model, at least within the British Isles, is self-evident; the implications of the experimental nature of this project are explored in more detail below.

Bearing in mind these two critical assumptions, we are strongly of the opinion that a CLAF which relies primarily or exclusively on a deduction from damages in the hands of a successful party has no realistic prospect of success in this jurisdiction. This is not a conclusion at which we have arrived lightly because, as will appear from our subsequent analysis, there are important potential advantages which inhere in CLAF. But all the available evidence suggests that a CLAF on a damages-deduction basis can only be achieved by the levy of a percentage deduction which will be unacceptable and unattractive to successful litigants by comparison with the other available funding options.

However, because we recognise the in-principle advantages of a CLAF there is a different model which we consider may have some prospect of viability (for the reasons we set out below), the central elements of which would be as follows:

(a) our fundamental proposition relates to the source of revenue to support a CLAF. We recommend that this should be by way of a contributory fee levied on the unsuccessful defendant, in addition to the damages award and liability for the claimant's costs. Precisely how the fee is to be determined would be for further consideration. The more obvious options might be as a percentage of the damages recovered in each case, or a fee determined by reference to a banded-value scale, or by a fee which distinguished between categories of actions, or as a combination of these options. The key success criteria would be that the amount of the fee-levy as an imposition on the unsuccessful party (in practice, the insurer) should be fair, balanced, and applied and administered efficiently (see further below). Secondly that the terms on which the CLAF option would be available to the litigant choosing to use this option would be attractive and competitive when compared to other options;

(b) we consider that this proposal is justifiable in principle in a situation where the Government has accepted now (in England and Wales) that it is not reasonable to expect a successful litigant to bear either the enhanced cost of the lawyers' success fee or the (reasonable) cost to the successful litigant of purchasing after-the-event insurance cover. The principle that the unsuccessful party should pay would appear intrinsically fairer than the proposition that the successful litigant should do so;

(c) the terms on which CLAF funding is made available to litigants within this model are important. If the CLAF option is to prove sufficiently popular to meet the concerns about adverse selection (which may well prove central to its viability and success) the terms available must be sufficiently attractive to bear comparison with non-CLAF funding options available in the market. In effect, this means that the incentives for the claimant will need to include, as a minimum:

(i) protection against personal liability for an award of costs in the event that the action is lost;

(ii) full costs recovery out of the fund of professional legal costs and disbursements irrespective of the outcome (subject perhaps only to the exceptional imposition of defined penalties for consistently poor performance, see below);

(iii) a nil or nominal cost for access to CLAF funding. It is conceived that no fee would be payable at least by claimants in receipt of prescribed forms of state benefit. It is conceivable that some limited registration fee for CLAF usage might be payable by claimants of modest means, although ideally the CLAF Scheme would be fully self-financing by means of the "losing party levy". Any limited fee for access to CLAF will need to be more attractive than the litigation funding costs available in the commercial insurance market. In theory, of course, this should be achievable, given that CLAF would operate on a non-profit making basis;

(iv) the systems operated by the CLAF administrator will need to be as simple as possible in the hands of the legal adviser conducting the litigation.

(d) it is important of course that a CLAF on this model should not be viewed as unfair or unbalanced as regards the interests of the defence/insurers. This need not be so for several reasons. First, the proposed absence of CFA costs-enhancements of professional legal costs (and associated insurance premiums) will represent a saving by comparison with the CFA regime operating in England and Wales. Secondly it is conceivable that the CLAF could provide for the recovery of defence costs against the Fund. Thirdly it is conceivable also that the CLAF could be refined to provide some form of incentive for early settlement (by discount on the standard percentages levy);

(e) within this model there will be no necessity to restrict access to solicitor of choice (subject only to the monitoring arrangements set out below). For the majority of personal injury actions, any solicitor would be able to offer a range of funding options. We affirm again the importance of the principle that a solicitor should be free to provide genuinely independent advice to each client as to the available options. The solicitor should not be "tied" to CLAF nor to any other funding product. Because, on this model, the use of CLAF does not involve a penalty (deduction from damages) imposed on the successful litigant with a cast-iron or strong case, the problem of adverse selection may be minimised, if not obviated;

(f) it is perhaps worth emphasising that, in the perspective of the Society this principle of independent advice not only in terms of choice of funding option but in terms of the conduct of the proceedings (and pre-proceedings negotiations) is cardinal. In practical terms it means arrangements with the funding source which avoid conflicts of interest, and preserve the primary responsibility of the solicitor towards his or her client. The CLAF, on the model proposed, is arguably the best means of securing the independent principle because it avoids the dangerous compromise and division of loyalties evident or implicit in the evolving CFA/insurance funding market elsewhere, in which the insurance industry dominates the conduct of both the prosecution and defence of civil litigation;

(g) we emphasise this principle because we believe that it has certain implications for the operation of all funding options within the market in Northern Ireland, irrespective of the establishment of a CLAF. Accordingly we take the view that the public interest requires that all arrangements whereby the costs of litigation are funded by third-parties in Northern Ireland should have the following minimum common characteristics;

(i) there should be no compulsory use by clients of panels of solicitors chosen by the insurer, or any other direct or indirect inhibitions upon the individual's choice of a competent solicitor;

(ii) there should be no enhanced fees payable to the solicitor in circumstances which compromise his primary obligation to secure the interests of his individual client;

(iii) similarly, there should be no circumstances in which the solicitor directly or indirectly is required to "purchase" clients referred or introduced by third parties;

(iv) any insurance product used for purposes of funding a claim conducted by a solicitor should be reasonable in its terms (whether as to the premium charged, the administrative and quality-control standards required, or otherwise), and accredited by the Society as such.

(h) because of the conflict of interest considerations already mentioned, and for other pragmatic reasons, we consider that decisions as to the grant and control of CLAF funding should be vested in a separate body. Assuming the establishment in due course of a Legal Services Commission, and given that body will have a responsibility in some areas of continued civil legal aid funding on the traditional model for merits assessment, the administration of a CLAF would appear to be vested sensibly in the Commission;

(i) in terms of administration, we have noted already the need for the CLAF to be as simple as possible in the hands of both the solicitor and the user. However, obviously this needs to be balanced with the need for merits assessment and control mechanisms proportionate to the circumstances of the case, to the extent of the costs exposure of the CLAF, and to the nature and complexity of the litigation. We envisage that it would be possible to devise a funding matrix to deal with the range of differing situations. For example, the approvals process for a cast-iron case might be considerable simpler in terms of the Commission processes than for a marginal case of considerable complexity in which the initial funding decision, and the progress of the case thereafter, will need to be subject to close monitoring and supervision by the Commission. It is conceivable that in certain cases the solicitor may be prepared to assume a responsibility for self-certification, subject to certain safeguards;

(j) as indicated, part of the rationale for a CLAF is to maximise continued access to justice through free choice of an independent legal adviser. Consonant with this objective we envisage that all solicitors would be entitled from the inception of CLAF to register and participate. The circumstances in which poor performance might be assessed and penalised would be developed by way of Protocol between the Society and the Commission;

(k) on disbursements funding during the course of a case, again we anticipate the need for a certain flexibility of approach. However, we expect that the general rule would be that no interim funding pending the outcome of the case would be required, thereby enhancing again the prospect that the CLAF would be financially viable. In exceptional cases (possibly corresponding to those being extensively monitored by the Commission) there may well be a need for arrangements for interim disbursements and interim legal costs;

(l) we conceive that, at least for the initial 5-year period (see below) the CLAF option would be made available only to cover the more common types of personal injury actions (broadly corresponding to those categories, such as road traffic accidents, industrial accidents, and tripping cases for which insurance is presently available on the market at affordable cost). Decisions as to the possible extension of the CLAF concept thereafter would be based on the assessment of the longer-term viability of the concept (see below);

(m) there would seem to be little doubt that, if a CLAF option is made available on the model commended by the Society, there will need to be a clear recognition of the experimental nature of these arrangements. We do not think that there can be any guarantee of success. On the other hand we would not commend the particular CLAF model set out in this letter, unless we had some reasonable degree of confidence as to its viability. We are satisfied that the potential benefits to be secured make this an experiment worth trying. However, we believe the experimental nature of the exercise should be recognised in two particular ways:

(i) we believe that the Government should be prepared to underwrite the administration costs of the CLAF for a minimum period of 3 years, with the possibility of an extension to a 5-year period in light of funding experience. In addition, the Government should be prepared to provide "pump priming" finance in respect of non-administrative expenditure out of the Contingency Legal Aid Fund until such time as the "loser-levy" income has accumulated to a sustainable level;

(ii) the CLAF model should be introduced as a time-limited experiment. We suggest an initial period of 5 years, followed by a review process (the criteria for which would be determined in advance) to assess the longer-term viability of the model.

By way of final comment, we do recognise of course that what is proposed may seem radical. However we suggest that this may be more apparent than real. At its simplest, the proposed model preserves some of the best features of the current legal aid arrangements while transferring the burden of funding from general taxation to the insurance market. This is no different, in principle, from what is the position in effect in England and Wales. However, the model effects this transfer in a way which is appropriate to the Northern Ireland litigation market and culture, and preserves the key principle of ready access to independent legal advice. We are satisfied that a model on the lines proposed by the Society would operate in the public interest in this jurisdiction.

Should you find it useful for us to do so, we should be happy of course to expand further on the suggestions, or indeed deal with any queries you may have. I hope, incidentally, that this letter will deal with most, if not all, of the 11 preliminary questions posed by the Working Group for consultation purposes."

21 June 2002

When representatives of the Society appeared before the Committee on 17th June we promised to provide some supplementary materials, compilation of which is in hand and will be passed on to you as soon as possible.

In the meantime you may recall that, in connection with the inadequacy of the proposed consultation process and time period, I had explained to the Committee that the relevant Minister had committed to attach weight to the views of the Assembly.

By reference to a transcript of what was said by the Parliamentary Secretary in the Lord Chancellor's Department (Mr David Lock) at the time of the launch of the Decisions Paper, I can confirm to the Committee the exact terms in which this commitment by the Government was given.

Mr Lock said (on 19th September 2000):

He also said:

With the exception of the Working Group chaired by Judge Smyth this has not happened.

This statement, and in particular the sentences I have underlined, may be helpful to the Committee in considering whether this commitment has been honoured by the Government bearing in mind; the fact that a period of some 21 months elapsed before the appearance of the promised Proposal for this Order in Council; the fact that the draft Order remains a framework which does very little other than to give effect to the outline proposals set out in the Decisions Paper, without the detail being provided to facilitate proper consultation; and the fact that very considerable expenditure has already been incurred by the Government in preparing for the implementation of these proposals (including the establishment of the new Legal Services Committee) before the views of the Assembly have been expressed.

I should be grateful if you would make this letter available to the Chairman of the Committee, to be distributed to other members of the Committee at his direction and discretion.

J W BAILIE
Chief Executive

The review of the provision of Legal Aid in Northern Ireland followed from the perceived problems of budget and access which arose in England and Wales and reforms which were introduced in that jurisdiction. There was a perception in England and Wales, which may have been accurate, that the cost of providing Legal Aid, both civil and criminal, was spiralling out of control. Having introduced reforms in England and Wales to deal with the problems that arose in that jurisdiction the Lord Chancellor's Department considered it appropriate also to deal with the Northern Ireland position.

It should be stated initially that the problems in respect of the cost of Legal Aid and of access to justice which apparently exist and continue to exist in England and Wales have not been identified as affecting the Northern Ireland system. While there may be areas were access to justice is restricted or difficult, the major problems which were identified in England and Wales have not historically been identified in Northern Ireland.

The Committee should refer to the Lord Chancellor's own Legal Aid Advisory Committee report, the Committee chaired by Judge Smyth QC which analysed the position in Northern Ireland and did not identify the cost of Legal Aid as "becoming an unacceptable burden". (See appendix).

It is our view that there has been and remains under the present systems a good level of access to justice in Northern Ireland. Costs are not at the level applicable in England and Wales. The local solicitors provide a wide general legal service and make use of barristers for the provision of specialised skills, all at a reasonable level of costs.

The difficulty that has arisen in respect of access to legal services arises from the continuing reduction in the threshold at which one would qualify for Legal Aid. This had has the effect of removing from the current civil Legal Aid system all but the most impoverished.

That being said and it being clear that the government are intent in introducing a different system we must look at the proposals to see if they do in fact provide a greater access to justice.

1. The Bar accepts the proposal to set up a new Legal Services Commission as an independent administrative body to administer and provide public funding for the provision of legal services. We do not accept that the powers, duties and responsibilities given to the Legal Services Commission under the proposed Access to Justice Order will in fact meet the needs of those requiring access to justice and provides increased access.

2. While the draft order is termed an Access to Justice Order it is in effect a restriction on access to justice for the vast majority of people and is a retrograde step compared with the access provided to people under the present system. While acknowledging the public interest in curtailing public expenditure, this should not be done by restricting the rights of many people to access to the Courts. What is in effect a financial cost cutting exercise has been "dressed up" as a reform to provide greater access to justice.

3. In the background paragraph above we refer to the difficulties which arose in England. Access to justice in England has been a problem, particularly in relation to the costs structure and also the availability of solicitors or other professionals to provide legal services in many cases. That problem has not affected Northern Ireland. The draft order is an attempt to apply an English solution to a problem which does not exist in Northern Ireland. There is no evidence that the changes of the Legal Aid in England and Wales has provided a greater access to justice.

4. The proposal in respect of the setting up of a Legal Services Commission, which is acceptable to the Bar, does give rise to major concerns that administrative problems and extra tiers of administration are undoubtedly going to give rise to increased costs and delays within the system which can only have a detrimental effect on the access to justice and strain the budget.

5. The proposal to withdraw civil legal aid/legal funding from personal injury cases is a major concern to the Bar. This is the most common reason for individuals to resort to law or the Courts. The civil legal aid system in Northern Ireland, particularly in relation to personal injury claims, has not been expensive. (See Judge Smyth QC's report). The Government proposal to introduce a system of no win no fee, which has been promoted in England, is strongly opposed by the Bar. It should be noted that each and every organisation or interested body asked to comment on the proposal to introduce such a system was opposed to it. That includes the Law Society, various insurance bodies and other interested parties. Across the board the introduction of such a scheme was opposed. We believe such a system to be fundamentally wrong. The effect of the system is not to allow greater access to justice but to allow legal service providers to take on case which would have been successful when taken on in any event and to deduct from the Plaintiff's damages a percentage of those damages.

For example a man who worked in the shipyard has developed asbestosis. At present a solicitor will take that case with the benefit of Legal Aid if the Plaintiff qualifies. If the Plaintiff does not qualify a solicitor will still take that case, may to fund the outlay in respect of medical reports etc himself and, if the case is successful, will hand over to the Plaintiff all of the damages which he has obtained for him. The Plaintiff is at no loss or no risk. In the proposed new system a solicitor taking such a case will be entitled to take for himself as an extra fee. Human nature being what it is, a solicitor is likely to identify those cases in which he is almost certain to win, to take those cases and to obtain extra fees. To present this system up as an advance and to describe it as assisting access to justice is worrying and misleading.

Many other examples can be provided.

6. The Bar proposed a system known as Contingent Legal Aid Funding. This is a system where an additional charge would be paid into a fund, not to individual lawyers. This fund would then be available to fund civil cases and would provide the proper access to justice. The system would be subject to a reasonable merits test. Such a fund could not exist side by side with the no win no fee system where lawyers would cherry pick the good cases for no win no fee and take a percentage of the damages for themselves leaving the fund with the prospect of dealing only the most difficult cases, some of which inevitably would be lost and would be a drain on the fund's resources.

7. The Bar is also very strongly opposed to the vesting in the Commission the right to decide what representation any person should have. This creates a very obvious and significant conflict of interest. The Commission is quite rightly concerned with the financial aspect of funding and could not be expected to approach impartially the decision of what level of funding any particular individual should have.

This is of particular concern in criminal cases where the liberty and reputation of the individual is at stake e.g. shoplifting.

Under the present system a Judge decides, having considered the papers in the case, what level of representation is necessary in the interests of justice. The Judge is independent having no input into the funding arrangements. The Judge also has the experience of knowing what the issues in the case are and what level of representation is required in the interests of justice in that case.

Under the new system the funding body undoubtedly would be interested in trying to restrict and cut costs. We may very well have the situation that a person facing a serious criminal charge may be restricted to representation without Counsel.

The principles of equality and fairness have been overlooked in the draft order.

The review and appeal process envisaged by Article 31 of the Draft Order is cumbersome, unnecessarily bureaucratic and time-consuming, and is wholly inappropriate to, and inconsistent with, the desire expeditious disposal of criminal cases. The determination by the Court of the nature and level of representation would wholly remove the need for restrictive and cumbersome principles and procedures embodied in Articles 30 and 31.

8. Civil legal services funding will not be available to persons in self employment or in partnerships. Why should there be such a restriction. If the criterion is to be need, then why should some automatically be excluded because they work for themselves in small businesses and are self-employed?

The Committee should have particular regard to the recommendations made by the Lord Chancellor's own advisory committee. Most of these have been rejected without any good explanation. It is our view that the proposals will restrict access to justice rather than increase it and that they have been drafted without any regard to the needs and requirements of Northern Ireland.

9. The Bar opposes the proposal to introduce a system whereby a person who is otherwise eligible and qualifies for civil legal services assistance may be denied those services by reason of prioritisation. The proposal introduces a provision which establishes administrative control over priorities. (For example; A.B. seeks advice and assistance relating to a housing problem in June, he satisfies the funding criteria and is granted funding. His neighbour has a similar problem in December. He seeks from a different adviser funding. He is refused funding because at that time he is not a priority due to the funding restrictions applied to the budget).

10. The Bar notes the criteria to be applied to the funding of such services (Article 15), and is concerned that once a person satisfies such criteria, no further prioritisation restricts the access to justice of such a person. Prioritisation is a tool of restriction. The criteria in themselves are a sufficient definition of the width of access to justice.

11. The Bar notes that the substance and shape of the Draft Order is as yet undefined in many areas. Very many regulations, codes, etcetera remain to be made and prepared. The Bar urges the Assembly to demand a continuing supervisory and consultative role in respect of the ongoing process of defining access to justice in Northern Ireland.

• A recognition of the desirability of, and need for, a separate and independent body (a Legal Services Commission) to fund and administer the provision of civil legal services and criminal defence services in Northern Ireland.
• An endorsement of the principle of full and free access to justice for all those persons in Northern Ireland who deserve and/or need such access.
• An emphasis that such access in Northern Ireland should be a wide access, not a narrow and restricted access.
• An apprehension that the principles and aspirations underlying the Draft Order are in fact restrictive, and seek to make narrow, rather than to widen, access to justice in Northern Ireland.

• The Bar notes the matters of company and partnership law, and other matters arising out of the carrying on of a business, may not be funded by the Commission [Schedule 2 (1) (f) and (g)], so that the Draft Order excluded the partners in dispute in a local taxi firm, or plumbing firm, or kitchen fitting business (for example) from access to justice.
• A rejection of the principle of conditional (contingency) fees. Firm support for the Contingency Legal Aid Fund model (CLAF). A clear recognition that a Contingency Fee system, and a CLAF system, cannot operate in tandem
• The Bar notes the criteria to be applied to the funding of such services (Article 15), and is concerned that once a person satisfies such criteria, no further prioritisation restricts the access to justice of such a person. Prioritisation is a tool of restriction. The criteria in themselves are a sufficient definition of the width of access to justice.

• The Bar considers that the level of representation should be determined by the Court, and not by the Commission. Only the Court can take an informed and objective view of the level of representation required by the issues, substance, seriousness and complexity of an individual case. Article 30 of the Draft Order is wholly restrictive of access to justice.
• The review and appeal process envisaged by Article 31 of the Draft Order is cumbersome, unnecessarily bureaucratic and time-consuming, and is wholly inappropriate to, and inconsistent with, the desire expeditious disposal of criminal cases. The determination by the Court of the nature and level of representation would wholly remove the need for restrictive and cumbersome principles and procedures embodied in Articles 30 and 31.
• The Bar notes that the substance and shape of the Draft Order is as yet undefined in many areas. Very many regulations, codes, etcetera remain to be made and prepared. The Bar urges the Assembly to demand a continuing supervisory and consultative role in respect of the ongoing process of defining access to justice in Northern Ireland.

(i) A Legal Aid Board should be established for Northern Ireland as soon as practicable.

(ii) The present scheme for civil and criminal legal aid in Northern Ireland should be retained for the immediate future subject to the following recommendations -

• Significant changes should be made to the present scheme for the provision of legal advice and assistance (Green Form) by moving responsibility and resources for the provision of some aspects of advice and assistance from the professions to the voluntary sector;
• The proper levels of funding for such services should be settled by Government after consultation with the voluntary agencies:
• Levels of fair and reasonable remuneration for work done in criminal cases should be determined by a public agency with a statutory obligation to publish the basis upon which it has determined such levels;
• Such an agency should be requested to consider the extension of fixed standard fees to most levels of criminal work;
• The present merits test for the granting of legal aid in civil matters should be reviewed with the objective of ensuring greater consistency in adjudicating and to minimise unfairness to non-assisted parties.

(iii) Conditional fees should not be introduced into Northern Ireland until such time has passed that would allow consideration of the advantages and disadvantages of their use in England and Wales and a study to be made to assess whether they are required in Northern Ireland.

(iv) Some changes should be made to reduce unfairness to non-assisted parties who are successful in winning their cases against legally assisted parties.

• In addition to the review of the merits test for the granting of legal aid in civil the word 'severe' should be deleted from Article 16 (3)(b) of Part II to the Legal Aid, Advice and Assistance (NI) Order 1981.
• Courts should be encouraged to consider the use of their powers to award costs (see Annexe A to this submission) as amended in circumstances where the interests of justice and fairness require this to be done.
• The Legal Aid Board for Northern Ireland, and where appropriate the courts, should be given a specific responsibility and powers to monitor and comment upon the quality of work being done by professional firms and voluntary agencies in publicly funded cases."