COMMITTEE FOR JUSTICE

OFFICIAL REPORT
(Hansard)

Remuneration for Defence Counsel in Crown Court Cases

10 February 2011

Members present for all or part of the proceedings:

Lord Morrow (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Lord Browne
Mr Paul Givan
Mr Alban Maginness
Mr Conall McDevitt
Mr David McNarry
Ms Carál Ní Chuilín
Mr John O’Dowd

Witnesses:

Ms Elizabeth McCaffrey	)
Mr Pearse MacDermott	)	Law Society of Northern Ireland
Mr Peter O’Brien	)

Mr Adrian Colton	)
Mr Brendan Garland	)	Bar Council of Northern Ireland
Mr Mark Mulholland	)
Mr Martin O’Rourke	)

Mr Tony Nicholl	)	Goldblatt McGuigan

Mr Robert Crawford	)
Mr John Halliday	)	Northern Ireland Courts and Tribunals Service

The Chairperson (Lord Morrow):

I welcome to the meeting Elizabeth McCaffrey, chairman of the Law Society’s access to justice committee; Pearse MacDermott, chairman of the Criminal Bar Association; and Peter O’Brien, assistant secretary for policy and law reform. You may brief the Committee, after which there will be an opportunity for questions. I was going to confine your time to 10 minutes, but we can give you a bit more flexibility because we got through our other business marginally quicker than I had anticipated.

Ms Elizabeth McCaffrey (Law Society of Northern Ireland):

It is dangerous to offer lawyers extra time, because they will be inclined to take it.

Good afternoon, and thank you for the opportunity to come here this afternoon and to discuss the issues raised by the draft Crown Court rules 2011. I am the chairperson of the access to justice committee of the Law Society, and I have been a member of the Law Society’s council for the past four years. I am a solicitor in private practice, and I am principal of the firm Copeland McCaffrey in Strabane. In fact, when I was just a few years qualified, I served for some years as legal assistant to the House of Lords Select Committee on the European Union — or European Communities, as it was then known. Therefore, I appreciate the hard work that is carried out by parliamentary Committees, particularly by your support staff, if I may refer to them.

On my return to Northern Ireland, I returned to practice in Strabane. We are a general practice that deals with whatever comes through the door. I specialise in employment law, conveyancing, probate and estate planning, but my practice deals with all aspects of legal practice.

Given that criminal law is not my specialism, I am particularly glad to have with me Pearse MacDermott, who is a criminal defence practitioner with the firm McCann & McCann. Pearse is spokesman for the Solicitors’ Criminal Bar Association and has been a key member of the society’s negotiating team on this issue. Peter O’Brien is the assistant secretary of policy and law reform with the society, having practised previously with the Magherafelt-based firm John J McNally & Co. Therefore, we represent a fair geographical spread.

We are here to discuss the draft Crown Court rules 2011. Before we discuss the detail of the rules, I will take some time to consider the importance of the services for which the rules will provide. As you know, the Crown Court deals with the most important serious criminal offences, such as murder, rape and offences related to terrorism. It is in the Crown Court that many of the high-profile criminal cases that we read about in our newspapers are heard. It is through the way that the state and, more importantly, the courts deal with such cases that members of the public assess the effectiveness and the fairness of the justice system. The 2011 rules will provide remuneration for solicitors and barristers to provide legal advice and representation to defendants, whether they plead guilty or innocent.

We all accept that it is essential that justice is not only done but is seen to be done. One of the ways in which the public see justice being done is through the adjudication of a criminal trial. The prosecution puts forward the case against the defendant, the defence tests the prosecution case by producing its own evidence and legal argument on issues of fact and law, and the jury makes a decision, based on the facts of the case, as to the guilt or innocence of the accused. The judge will give directions on legal issues and will hand down a sentence if the accused is convicted. In those circumstances, the defence solicitor plays a crucial role in testing the weight of state evidence, preparing the defence’s case and instructing counsel and witnesses. That work requires significant skill and time, and we say that it is complementary to the role that is played by barristers. It is essential, therefore, that solicitors are adequately remunerated.

The proposed rules would do three things. First, they would abolish the very high cost criminal cases (VHCCCs) regime. Secondly, they would abolish provision for exceptional Crown Court cases. Thirdly, they would reduce the fees payable in standard cases by 25% for solicitors and 20% for advocates. I should add that there is provision for additional payments to defence solicitors on the basis of the pages of prosecution evidence and to defence counsel, depending on the length of the case. That is not related to the complexity of the issues or the seriousness of the offence, as you might reasonably expect.

The current proposals do not meet with the society’s approval. We believe that they do not address the significant concerns that the society has raised throughout the negotiations and, indeed, may jeopardise access to justice and lead to the diminution of defence services before the Crown Court. Throughout negotiations, it has been clear that the Court Service’s two objectives have been to, first, lower the fees and, secondly, to create a wholly objective system for the remuneration of Crown Court cases.

Although the society has raised concerns throughout the negotiations, we are conscious of current streams of public finances, and we have, at all times, sought to identify mechanisms for meeting the Court Service’s objectives. That has proved testing, given that the Court Service’s position on various issues has moved in the course of negotiations. It is worth noting, however, that those negotiations began with a proposal to simply transpose the system for remuneration of standard Crown Court cases in England and Wales to Northern Ireland. That was strenuously opposed by the society as it gave limited consideration to the particular circumstances of this jurisdiction. Following an informal indication during negotiations, the society suggested that the very high cost cases (VHCC) scheme be abolished and that fees for standard and exceptional cases be retained. That proposal was made after much discussion in the profession in an effort to prevent the imposition of the English system along with all its failings. The Court Service accepted our proposal that the VHCC regime be abolished but required that the exceptionality provisions also be abolished and that the fees payable in standard cases be reduced by 30%.

Our discussions then focused on the need to deal with complicated cases that were previously classified as either an exceptional case or a VHCCC. At that stage, the Court Service informed the society that it would only be willing to accept a wholly objective system administered on a tick-box basis. That placed our negotiating team under further strain. The society produced a model on the basis of pages of evidence and provided objective criteria for the determination of the case. While we expected the Court Service to propose a system that had two limbs, one based on the volume of the case and another on its complexity, we now have a scheme that is based entirely on the volume of prosecution evidence only. Furthermore, the willingness of the society to accept significant reductions in the scheme for complex cases has not been greeted with any significant change to the proposed — we would say draconian — reduction in fees for standard cases.

Our negotiation with the Court Service had been strained by the difficulties in identifying projected savings. That is most stark in relation to VHCCCs. The Committee will be aware that VHCCCs have, for some time, been highlighted as the most significant cost driver to the legal aid fund. Throughout negotiations, the Court Service was unwilling to take full account of the savings that the abolition of the VHCCC regime will yield. It is now understood that the Courts and Tribunals Service accept that, by 2013-14, the abolition of the VHCCC scheme will yield an annual saving of £16·16 million. I will repeat that figure because it is substantial: £16·16 million. From that figure, the society calculates, on the basis of the actual spend for 2008-09, that there will be an overall 53% reduction in public funds invested in criminal defence representation in the Crown Court. We further calculate that the Department could reduce solicitors’ fees by only 10% and still stay within the revised 2013-14 budget.

At this juncture, I would like to express the society’s disappointment that the legal aid budget has been reduced from £79 million to £75 million. The legal aid budget was ring-fenced to ensure confidence in the justice system. We cannot understand how the proposed reduction is justified. It is understood that the Committee shares our concerns, and we suggest that, if the Budget is restored, additional provision should be made for the complicated Crown Court cases. I would add that our figures are based on the Department’s figures, and, therefore, the accuracy of those figures is dependent on the accuracy of the Department’s figures.

The current proposal is based on two assumptions that, in the society’s view, are questionable. First, the Court Service takes the view that a wholly objective system for the remuneration of criminal defence services in the Crown Court is sufficient to ensure a fair trial for the defendant. The Committee will be aware that article 6 of the European Convention on Human Rights places an obligation on government to provide legal assistance to a person charged with a criminal offence. Case law from the European Court of Human Rights indicates that it is not sufficient simply to provide informed assistance; it must be effective assistance. The assistance that a defendant requires may vary substantially depending on the circumstances of their case. It is not at all clear whether the objective system proposed will provide sufficient discretion to provide appropriate legal aid for the circumstances of every case.

The second assumption made by the Courts and Tribunals Service is that defence solicitors in this jurisdiction are better paid than their colleagues in England and Wales and that legal aid cases are more expensive here. An independent review of legal aid schemes across the European Union carried out by the European Commission for the Efficiency of Justice demonstrates that, in fact, on a case-by-case basis, legal-aided cases are less expensive in this jurisdiction.

The report showed that the average amount of legal aid allocated per criminal case in England and Wales was €1,931, whereas, in Northern Ireland, it was €1,656. The report also showed that a significantly higher number of cases were granted legal aid per head of population in this jurisdiction than in England and Wales — over 58%. We suggest that that reflects the higher levels of need in this jurisdiction.

However, figures are always open to interpretation. The key message that we wish to send today is that the cumulative impact of the proposals will be a diminution in the quality of defence services before the Crown Court. We say that the 25% reduction in standard fees is a cut too far. Although we understand the budgetary constraints within which the Minister must work, it remains incumbent on the Department to ensure that sufficient provision is in place to guarantee a quality service that will ensure that justice can be done. We suggest that a reduction of 10% would be more sustainable. However, the issue of exceptional cases still requires consideration.

We suggest that, if the Department is unwilling to develop appropriately the current proposal or enhance the payments on the basis of prosecution evidence only, the Committee should obtain an assurance from the Department that it will closely monitor the impact of the new system on those cases that would previously have been categorised as VHCCCs to ensure that the defendant is being given a fair trial.

Finally, I want to express concern at the disproportionate burden that the solicitors’ profession is being asked to bear in comparison with colleagues at the Bar. Given the significant overheads involved in running a solicitors’ practice in comparison with practice at the Bar, and given the potential for job losses in solicitors’ practices, we cannot understand how it can be considered justifiable to reduce fees payable to solicitors by a higher proportion than those payable at the Bar. Thank you very much.

The Chairperson:

Thank you very much for your presentation. I would like to ask you about a couple of things in your paper, and then we will take questions from members. You spoke about very high cost cases and exceptional cases. Is the term “exceptional cases” just another name for very high cost cases?

Mr Pearse MacDermott (Law Society of Northern Ireland):

The short answer to that question is no, it is not. We have accepted for quite some time that the previous VHCCC scheme was unsustainable. We felt that it was driving costs in criminal legal aid up to a level that was not justified and could not be sustained. At a very early stage, we indicated to the Court Service that we saw the removal of that scheme as an integral part of making the savings that have to be made at this current time. However, we are not referring to a system that is similar to the VHCC system. We are referring to the very rare occurrence of an exceptionally complex case, which will involve a volume of paperwork, effort and time and will require some remuneration. In the proposal before us, that remuneration is absent.

Our concern is that, in the absence of remuneration and the ability to carry out the work that is necessary, there will be an impact on the quality of the defence service provided to clients and, therefore, the quality of the justice system in general. That is our big concern. However, we do not see the cases that we are referring to as complex cases as being directly equivalent to VHCCs. Certainly, they would be encompassed within that to some degree, but it is a very different category altogether.

The Chairperson:

You say in your paper that:

“The Society wants to work with the Minister to ensure that this does not occur.”

I understand that you have been working on that for some considerable time. You make that statement, but is it right that you have been working on that for nearly two years and it has not occurred?

Mr MacDermott:

That is correct. We have been involved in discussions with the Court Service over a protracted period of close to two years. The initial proposal was the wholesale introduction of the English system — the graduated fee scheme (GFS) system. We were opposed to that for a number of reasons, and the Court Service eventually agreed that we were correct.

Our difficulty during these negotiations has been that the Courts and Tribunals Service has kept moving the goalposts. Every time we ask the Courts and Tribunals Service what savings and what budget we need to achieve and ask it to show us the figures that they will be based on, something changes. For example, since the Hillsborough agreement and the letter from Gordon Brown, it had been agreed that £79 million would be ring-fenced for legal aid. We are now told by the Justice Department that, as of 22 December 2010, the figure is £75 million, which is quite a substantial reduction. I say that we were “told”, but we were not; we came across it in the budget, but nobody notified us of the change, which is a bit surprising given that we have been involved in discussions with the Courts and Tribunals Service.

We have come to the table with an open mind and have attempted to move the matter forward so that we can agree a situation. That is why, in the current economic climate, we have agreed to a 10% reduction in the standard fee and the removal of the VHCC regime. Our figures, which have been approved by the accountancy firm Harbinson Mulholland, show that our proposal will come within the £79 million budget. That is the important factor. We cannot understand why our proposal has been rejected by the Courts and Tribunals Service, because it is sustainable and will maintain confidence in the administration of justice.

The Chairperson:

You mentioned the change from £79 million to £75 million, which is something that led to some discussion in the Committee. You said that the Courts and Tribunals Service keeps moving the goalposts and cited an example, and an important one, too. Can you cite any other examples?

Mr MacDermott:

Mr McDevitt:

Under the current system, how are solicitors able to ensure that, faced with the prospect of six crates full of files, they are able to get the time to go through them to assure themselves that there is nothing in them that is material to their client’s defence? How does it work?

Mr MacDermott:

Under the current system, there are two mechanisms. First, if a VHCC certificate is in place, there is a time-recording function, and the solicitor records the time spent doing that work. The approach that is possibly more appropriate in an ordinary case or a case that does not meet the VHCC criteria is to submit to the Legal Services Commission what is called an application for exceptional payment, which is an application for payment for a set number of hours in which to carry out that work. You work out the number of hours involved and then make an application to the Legal Services Commission for an exceptional payment. It will grant or refuse that, but at least you are being remunerated for work that it is necessary to undertake on behalf of a client. Under the current system, there is no provision whatsoever for that type of work to be done at all.

Let us talk about justice, which is an interesting thing to talk about occasionally. All the miscarriage of justice cases in England were based on lack of disclosure. Cases such as those of the Guildford four and Judith Ward came down to lack of disclosure by the prosecution. Disclosure is a key issue in a defence case, and it is very important that that work is undertaken by a solicitor.

Mr McNarry:

You are very welcome. I really appreciate your attention to detail in what you have furnished to us. I find it very useful, even though I am still wrestling with the idea of solicitors and barristers and the competition that there seems to be around remuneration. However, we are obviously looking for value for money and best service to the public. Will you briefly outline what impact you think the proposals will have on your profession’s ability to maintain its standard of service to the public?

Ms McCaffrey:

The big difference between solicitors and barristers is that we have to maintain offices and we have overheads to pay. We have probably a greater number of support staff than our barrister colleagues do.

Mr McNarry:

Do they not have staff?

Mr Peter O’Brien (Law Society of Northern Ireland):

They rarely do; possibly a secretary.

Ms McCaffrey:

Quite often, you find that barristers may have a secretary or may share a secretary. Because a lot of their time is spent in court, they may not necessarily have a full-time secretary. You find, therefore, that solicitors’ practices have much higher overheads than barristers. That is why we are at a loss to understand why there should be a suggestion that we take a higher cut in fees than barristers. We think that the aim of both branches of the profession is the same. We want to achieve a quality service for our clients, and if we are not able to do that—

Mr McNarry:

Sorry for interrupting. I understand that you do not like what is being proposed, but how would it impact on the standard of service that you give? Would it be reduced? Would it be worse? If so, tell us. Tell us what the consequences will be.

Mr MacDermott:

Two issues that flow from the current proposal would impact on the quality of service. The first impact would be on access to justice. It is important that all people have access to a proper justice system. The proposed system would have an impact on firms in certain local jurisdictions, which may decide that it is not economically viable for them to undertake this type of Crown Court work. The situation would then be one of legal wastelands, as in England, whereby people would not be able to get a criminal defence solicitor to appear for them in their local area and would have to move to a bigger area — Belfast, Omagh or wherever — to get that provision. Therefore, there would be an impact on access to justice.

Secondly, a very important impact would be on the quality of justice and confidence in that quality of justice. In the current situation, twelve months into the devolution of justice in this jurisdiction, it is very important that the public have, hopefully, complete confidence in the system of justice that is available. We feel that the impact of cuts to remuneration for Crown Court cases would mean that solicitors are unable to provide a service.

You are asking what that will mean. In a case where a large amount of work has to be undertaken, solicitors’ firms, like every other business, have to decide what they can and cannot do. They have to allocate resources and decide what is economically viable. In some larger, more complex cases, a solicitors’ firm will say that it is just not possible to do a case given the economic return. That could lead to the situation whereby some defendants, particularly those in complex and high-profile cases, end up being unrepresented. That, in turn, would lead to delay and backlog in the court system and to judges being left in the very difficult situation of having defendants before them who are unrepresented. Therefore, there would be a major impact on the justice system because of delays. As we all know, any justice delayed is justice denied.

He must be allowed to reply.

Mr MacDermott:

Flippancy aside, the real issue is the importance of solicitors to the criminal justice system. It is not that we are not a business; we are, but we provide a function in society, and the value of solicitors’ work to the criminal justice system is massive. It is a societal question. How does society want its justice system to operate? It can have an underfunded, cheap-rate system of justice, whereby innocent people are convicted and rights are not defended, or it can have a proper and adequately funded and fair system. Although we are a business, we need society to fund the criminal justice system, within which the role of solicitors is paramount. We defend people who are charged with the most serious offences. Society has decided that people are entitled to be defended. There is a presumption of innocence, and we are entitled to challenge prosecution evidence. All those matters are very important, and that is our function. If funding is not there to do that work, people will stop doing it and defendants will no longer have the rights that they presently have. The danger is that, if confidence in the justice system is removed, there will be a hugely detrimental effect on society as a whole.

Ms McCaffrey will deal with the impact on new recruits.

Ms McCaffrey:

Thank you for raising the issue, because, at the moment, it is an issue of real concern to the Law Society. Previously, I sat on the Law Society’s education committee, which deals with the training of apprentice solicitors and new solicitors. Currently, I sit on the supervisory committee of the graduate law school at the University of Ulster’s Magee campus, which is one of two training centres for young solicitors in Northern Ireland. The other is at the Institute of Professional Legal Studies at Queen’s University. This is the first year since both those institutions were set up that they have not been able to fill their quota of places. That is because not only must all potential solicitor trainees pass the required aptitude test and successfully complete a law degree, but they must find a master — a solicitor of at least seven years’ standing — who is willing to take them on and train them throughout their apprenticeship.

In the past three or four years since the recession first hit, there have been a substantial number of redundancies, especially, and unfortunately, among younger members of the profession. To many of us, that is a real concern, because we would like to see more young people coming into the profession. They bring new, up-to-date ideas and familiarity with new technology, with which some of us struggle as we get a bit older. It is important for the lifeblood of our profession that young people come into it. Consequently, we are very concerned about the real impact on recruitment into the profession in the past year or two.

Mr O’Brien:

In addition to the general impact that there may be on recruitment to the profession, there are particular issues with attracting people into legal aid practice. In England and Wales, the National Audit Office has looked at the effect of various policy changes on the criminal legal aid system. That was one of the key reasons why we were very opposed to the introduction of the graduated fees scheme. People there were barely able to make a profit from work that they had undertaken, and, as a result, many of them indicated their intention to close their business within the next five years. They were certainly not prepared to take on extra people to do the work in that particular area. Legal aid practice is the poor relation of general practice, in the sense that the rates paid do not attract people to do such work. Our main concern is that the expertise in legal aid practice in general, and criminal legal aid practice in particular, will be lost.

Mr McNarry:

On that basis, we tried to come up with a proposal that allowed for some form of subjective and objective test with regard to cases, because, as you rightly said, a case could be small in paperwork terms, but it could be very complex because of the novelty of the point of law, the defendant could be mentally impaired or they might not speak English. All sorts of things can make a case complex. We said that you cannot judge the quality of justice or the provision of justice through a tick-box exercise. Therefore, we said that there had to be some form of subjective testing. The Courts and Tribunals Service objected to that because it would mean that someone would have to look at it, and that did not suit its means because it involved more cost.

Mr A Maginness:

What would happen if, for the sake of argument, a normal fee was paid but the outworkings of a case became complex? Could provision be made for the judge who is hearing the case to consider an application for enhanced fees? Could that be a runner?

Mr MacDermott:

I think that was discussed, and it is the situation in some family cases as the judge certifies the case as being exceptionally complex, which increases the fee. It was not done in the criminal field in the past, and it was not actively pursued. The difficulty with that is that, from a solicitor’s point of view, the preparation of the case and the amount of work involved in the preparation is key, and it is difficult for a judge to certify what is involved in the preparation of a case. However, it was not discussed in any great detail. It is something that will be the subject of tests as to what makes a case exceptional. We feel that the Courts and Tribunals Service is not interested in anything that is subjective. It wants something that is purely objective and can be tick-boxed. That is the problem.

Ms Ní Chuilín:

For the record, as the Chairperson alluded to, the Committee was not amused by the figure of £79 million in respect of legal aid being reduced. Our understanding was that an international agreement was negotiated. Other members can speak for themselves, but my view is that the Courts and Tribunals Service tinkered with that agreement, and it had no business doing so.

This is the first time that I have heard about the figure of £16·16 million. You said that you were in discussions with the Court Service for two years, and I apologise if you already mentioned this, but at what stage in those discussions did you come to the figure of £16·16 million?

Mr MacDermott:

First, thank you for your comments about the £79 million. It was also a surprise to us. We also take the view that there was an agreement between sovereign Governments. It was signed by sovereign Governments and, for the Courts and Tribunals Service to come along and interfere with that, is something that we are very concerned about. None of us had heard of the figure of £16·16 million before 25 January of this year. It is the first time that it has appeared in any document. A letter was sent to us from the Courts and Tribunals Service, which contained its latest proposals for savings, and the £16·16 million appeared in that document.

Figures have been thrown left, right and centre in these negotiations. How you ever get to the point where you understand what figure we are supposed to be dealing with is very difficult, but the £16·16 million was first raised with us in a letter dated 25 January 2011 from the Courts and Tribunals Service. Up until then, there were varying figures of what the VHCC would save. Going back to the start of negotiations, they thought that they would save £5 million, but it is now up to £16·16 million. Given the lateness of the hour and the lateness of the stage of the negotiations, they are standing over that figure. It is on that basis that we put our proposal, which comes within their budget.

Ms Ní Chuilín:

OK, so at least it is something that can be settled on, even if you are not content with it.

Mr MacDermott:

We initially thought that the saving for the VHCC would be around £15 million, so it fits in with our projection, albeit based on figures that the Courts and Tribunals Service has given us in the past. However, it is the first time that it has acknowledged that the saving will be £16·16 million.

Ms Ní Chuilín:

My other questions are about some of the cases that have been listed, particularly around disclosure. I do not know how many cases there have been in recent times in which there have been non-jury trials. I have no idea how many cases there have been in which public interest immunity certificates are issued. I do not know how many cases involve Queen’s evidence under the Serious Organised Crime and Police Act 2005. However, it strikes me that, if there is an increase in those cases, and if disclosure is not going to be as full as it should be, it may have an impact and lead to hyperbole and miscarriages of justice.

They have limited outlay, which is certainly not anywhere near the outlay that a solicitors’ firm has.

The important point about that is that solicitors’ firms are part of the community that it is based in. Firms employ and finance people within those communities, who then go to local shops to buy their sandwiches and sweets. That is all part of the local community. If solicitors’ firms are taken out of the equation, those communities will suffer.

Lord Browne:

Looking at pages 5 and 6 of your paper, which deal with Crown Court remuneration, I see that the Northern Ireland Courts and Tribunals Service has accepted the arguments that you made based on the figures that you produced. However, it has not reduced the level of cuts. Has it given you any indication as to the rationale behind that? It appears to have accepted your rationale, but made no suggestion about the cuts.

Mr MacDermott:

I just want to pick up on a number of points. I can understand why, at a superficial level, the Committee asks why the Bar is proposing a cut in standard fees of 10% for barristers and we are proposing 20% for solicitors. I hope I have answered that question before. I will make it clear: that applies only at the bottom end of the scale. We took a sophisticated approach to this. Rather than having percentage cuts across the board, we decided we should deal with the problem.

The problem is VHCCs, which is where the big money was going out. We suggested concentrating the cuts on those cases and having a graduated system so that younger members and those coming into the profession at the bottom of the scale — the bread and butter of the profession — would be able to make a living and have a career. In our proposals, 65% of the cuts are coming from the Bar and 35% from the solicitors’ profession. Therefore, it is not true that we are asking for a greater cut for solicitors, and I want to make that clear.

Furthermore, we must remember that the fees already provide for greater payments to solicitors. That is rightly so, by the way; I do not criticise that. On average, they get 2:1 in any trial, which is right because they have overheads and extra staff. That is already built into the figures, and that should be borne in mind as well.

I agree with nearly everything that my colleagues said, particularly Mr MacDermott and Ms McCaffrey. I support what they say about the importance of having a proper legal system in place to ensure that people are properly represented. It is debatable whether £79·5 million or £75 million is sufficient, but we are prepared to work within that. We have never gone back and said that we want more money; we have never cried about it. We have said, “Right, that is the budget; let us come up with a scheme.” We think that our scheme will work, and we think it is fair.

I want to pick up on what the Law Society said about the effects on the profession, and I know that that is of interest to the Committee. Although it is right to say that the Bar does not employ as many people as solicitors employ, we have invested £20 million in a Bar Library, which has to be paid off. We deliberately have a system whereby those who come to the Bar are supported during their first seven years. That is particularly important now as an increasing number of females come to the Bar. We are anxious that they have an opportunity to build a career so that the Bar will survive, so, for that reason, we subsidise them during their first seven years. We also employ many staff in that building, and individual barristers employ secretarial staff and so on of their own.

The effect on the profession will be particularly damaging, especially given that the students who come to the Bar now are frequently in debt. The average debt of someone coming to the Bar is £25,000, and they have no guarantee of income. They are out there trying their best to get work under very difficult circumstances. I also want to make it clear that, throughout its history, the Bar has never refused a master to anybody who comes through the qualification process. We will guarantee that anyone who qualifies as a barrister will be given a master and will be given an opportunity to practise at the Bar. That is unlike the system in England and Wales, where literally hundreds of barristers cannot get into chambers because of the closed system whereby you have to get into chambers before you can practise. We have an open system, and we want to keep it that way. One way of doing that is by ensuring that people who come to the Bar have an opportunity to work and get fair remuneration for that work. That is why we have concentrated our proposals on cutting the top fees and protecting the standard fees at the bottom. That is the approach that we have taken. We do not apologise for that; we think that is a fair way of doing it, even though some of my colleagues may disagree.

That is all I have to say generally. I will have over to Martin O’Rourke. I am conscious that you have had an opportunity to read our paper as you have had it for a number of months. It is a substantial and lengthy paper, but Martin may highlight some of the points.

Mr Martin O’Rourke (Bar Council of Northern Ireland):

The Bar’s position is really very simple. Initially, the Courts and Tribunals Service wanted to move to the English and Welsh system of a graduated fees scheme. We suggested an alternative method, which has been adopted by the Courts and Tribunals Service as a good method because it achieved predictability and is simple. It is really just an extension of the 2005 scheme. It was our idea to move into the new, extended 2005 scheme to begin with.

The difficulty is that, having carefully budgeted our proposals with the assistance of Goldblatt McGuigan so that we would achieve our aim of coming within the £79 million, the Courts and Tribunals Service has, for no apparent reason, taken our carefully budgeted scheme, which it agrees meets the £79 million target, and simply slashed the fees in each area well below what we had initially suggested. That is the first issue that we have; in each box, if you like, it has reduced the fees significantly below those figures that would meet the budget.

Secondly, in his presentation to the Committee on 7 December 2010, Mr Crawford repeatedly referred to guilty pleas 3 and 4 — GP3s and GP4s. However, if you look at the draft document, you can see that those do not, in fact, exist; there are just GP2s. That is significant, because, under the current proposals, a barrister will only get paid the enhanced fee for the complicated, significant cases if a client pleads not guilty on arraignment. However, we all know that, when doing those types of cases, particularly the complex and voluminous ones, a lot of work has to be done to advise the client before getting to the arraignment stage. It may well be that he pleads guilty on counsel’s advice, and it seems to us that, under the current proposals, if he pleads guilty, the enhanced fees for the more complicated cases simply do not apply. They are all driven back to the 2005 scheme, which has existed since that date. So, there is a problem around how you get access to those enhanced fees. We have asked the Courts and Tribunals Service to address that issue, but it has not been addressed in the draft document.

The third issue that we identified is how the enhanced fees are triggered. Mr Crawford referred to GP3s and GP4s in his presentation to the Committee, but they are not referred to in the document. As you will have seen from the proposals, those fees are triggered by means of a page count. However, we have analysed the data that we have available from previous cases, and it is our submission that, if one were to apply the current proposals on page counts, few, if any, cases would ever trigger the higher fees for complicated cases. In other words, although, on the face of it, it looks as though there is a scheme to cater for those cases, in fact, people cannot get access to those fees because the page counts are so high that no cases will ever fall within those figures.

When Mr Crawford presented to you on 7 December, he suggested a 20% reduction on the initial draft but, significantly, not in class A cases/offences, namely, murders, or in class G cases, which are complex fraud cases, VAT evasion etc. Those are the two categories of cases that will generally be the complex and significant cases. He is proposing a 20% reduction in the cases that will generally not fall within the complex cases category in any event, so it looks like an attractive compromise by Mr Crawford but, in effect, it will have no real meaning in practice.

We say that the page count — in other words, the way in which one gets access to the extended grid — has to be adjusted. You have already heard from the solicitors, and you will have noted that it is proposed that 750 pages would trigger an enhanced fee for solicitors. It is difficult to see the rationale for solicitors getting an enhanced fee at that page count but representatives at the Bar not getting an enhanced fee at that same rate. There is no logic to that whatsoever.

Those are areas that need to be addressed by the Courts and Tribunals Service. The grid needs to be adjusted in the way that we have proposed, and some of the rules that govern the access to those fees need to be readjusted if there is to be any realistic prospect of getting access to them. Those are matters that we have set out in our paper and which we have asked the Courts and Tribunals Service to address, but, to date, we have had no realistic response from the Courts and Tribunals Service.

We have carefully studied Mr Crawford’s submission to the Committee on 7 December, and there are a number of significant matters that we need to address and on which Goldblatt McGuigan have assisted us. It may be better for Tony Nicholl to address those matters.

Mr Tony Nicholl (Goldblatt McGuigan):

We have provided correspondence to the Bar dated 10 February in which we asked for documentation. There are a couple of points worth raising. Robert Crawford advised that a 28% cut was required for counsel fees to bring the standard fees in Northern Ireland in line with the graduated fee scheme in England and Wales. Based on the consultation paper and the figures that we have analysed, the required cut is, in fact, 17·5%, not 28%. Robert Crawford confirmed that the Bar Council’s proposal met the budget, and he provided additional figures, bringing the figures down to £75 million in 2013-14. Our point is that the Bar Council’s scheme falls within even that budget, taking into account the administrative savings and the civil legal aid savings. In general, this had been an extremely arduous process of negotiations in which the goalposts have been moved on us constantly.

Mr McCartney:

Is there a case here for a complex case?

Mr Nicholl:

It was the issue of the goalposts constantly moving in the negotiation process.

Mr McCartney:

Is there an enhanced fee here maybe?

Mr Nicholl:

With any luck.

At all times, we have managed to come up with a scheme or a proposal that has met the requirements of the Courts and Tribunals Service, and I do not think that that is in dispute.

On the Law Society’s comments on the disparity in savings, the underlying figures behind the proposals were that the graduated fee scheme proposal was looking for a reduction of 34% and the figures being sought were a 58% reduction in solicitors’ fees and a 17% reduction in counsel’s fees. Therefore, there was always an expectation of disparity in the result, and the proposal addresses that.

Mr Mark Mulholland (Bar Council of Northern Ireland):

I attended the Committee on the previous occasion that the Courts and Tribunals Service appeared, and I listened to the presentation. A number of highly relevant and significant questions were asked, and a number of responses were given. I came away with a deeply felt sense of frustration because, on that day, we were not to present before you. On that occasion, I noted the points to which I took some exception, and I will deal with those now. The Courts and Tribunals Service will have the opportunity to come back on those.

The Courts and Tribunals Service was asked what qualitative or impact assessment had been conducted prior to the intended implementation of the scheme, and the answer was that there had been none. A degree of confidence was conveyed to the Committee that you were to be assured that, whatever the cuts and whatever the significant extent of those cuts, quality representation would still be given in publicly funded cases. Frankly, I invite the Courts and Tribunals Service to inform you, on an informed basis, how it can assert that, because, in all of the discussions that have been held with the Law Society, the Bar and the Courts and Tribunals Service, the one common theme has been that people in solicitors’ firms will be put out of business, barristers will be put out of business and the quality of representation afforded will be diluted.

However, do not take our word for that; look to England and Wales. That was said with a great deal of authority, because we have looked to England and Wales. We visited the Bar in England and Wales, got its data, heard its anecdotal accounts and listened to the Lord Chief Justice and the chairman of the Bar Council there. We also read the Public Accounts Committee report of February 2010, which made express reference to the dilution of the quality of representation.

Leaving all of that aside, at first principles, a Google search would have turned up the Ministry of Justice paper of March 2010 for the Courts Service there, ‘Restructuring the delivery of criminal defence services’, paragraph 6 of which states:

“However, in our view it would not be sustainable to continue to reduce administratively set fees while maintaining the current supply structure. A number of providers have told us forcefully that we have already reached the point at which criminal legal aid work has become unprofitable for them, and it is no longer viable for them to continue to undertake it.”

The reference to “providers” is to barristers and solicitors. That is mirrored and replicated in comments that you will find in our papers from Nick Green QC, who was, at November 2010, the chairman of the English Bar Council. Again, he says:

“It will come as no surprise that a disproportionately high percentage of leavers”

were women and people from ethnic minorities. By reason of what he has described as the significance of the drastic cuts in England and Wales — the very thing that is being proposed here — there has been a marked effect on the quality of representation, to the extent that, by November 2010, in his paper to the Bar of England and Wales, which comprises some 15,000 members, he said that, invariably and inevitably, it means that the Bar, in most areas, can no longer remain within publicly funded work.

To say that that will not have a gross and severe impact on the quality of representation afforded is wrong. In contrast, the Courts and Tribunals Service has said to the Committee that it is confident that it will find people to do the work. Anecdotally, a person who has done 18 months to two years in chambers in a practice in London may be sent to the Crown Court by those chambers. I have been at the Bar for 19 years and Martin O’Rourke has been at the Bar for more than 20 years. We are still junior barristers, and that is the work that we are doing, after years of experience of conducting cases in courts on a daily basis. To say with confidence that there will be no effect; well, that is the difficulty when no impact assessment or quantitative assessment has been made in advance of making such far-reaching proposals.

When the Committee received that presentation, there was, on the face of it, a concession on the criteria that should be applied in what would be classified as non-standard cases. Again, the irony of ironies is that this was the scheme that the Bar presented to the Courts and Tribunals Service. The Bar proposed to abolish VHCCs and to replace them with fees that would be significantly reduced by up to 68% in a scheme that would be all the things that were required — accountable, predictable and transparent. However, what was omitted in the presentation to the Committee was that, in the two categories of cases that normally give rise to non-standard cases — the biggest cases of murder and fraud, known as category A and G respectively — the page count is to be taken down from 2,500 to 2,000. Well, I say, “Big deal”. It will not make a button of difference in those cases.

Those cases need the very thing that Pearse MacDermott mentioned — the inclusion of the disclosure count. I could get a case today with a lever arch file containing 500 pages. I could fill this room with the disclosure in it. The totality and the extent of the work that I, as a barrister, do, sitting nightly until 2.00 am or 3.00 am looking for that key point, is not found in that single file; it is found in the disclosure. However, the criteria to be applied will not afford that case to be paid anything other than a standard fee.

A standard fee still represents a significant amount of money to the man in the street. However, bear this in mind: when you take on a big case that can run for six months, you take off most of your summer to work on it. You work every night into the night, and you do it during trial to the exclusion of other work at court. Unlike a solicitor, you are a one-man band. You are retained as a hired gun to present a case with your skill, your experience of advocacy and your depth of knowledge of the law. However, you can only be in one court at a time when a big case runs like that. It requires 110% commitment.

What has happened to date is this: it was our suggestion to abolish the hourly rates that were being paid. However, the matter had to be looked at in a very pragmatic way, because we still felt that, if you give up your time and your experience — it is the people who have reached the top of their field who take those cases — there still has to be fair, but not excessive, remuneration. I will outline the problem that was arising and that will arise. You get your case with your roomful of disclosure, which is normally read in advance of the trial and is dissected and cross-referenced. It is worked on by the legal team, and you prepare your legal arguments and applications. That is done in order to expedite the court hearing and save court time. The skeleton arguments are now two a penny. You are drafting written submissions and pre-trial applications every night, all with a view to cutting down court time and saving resources. To do all that, and to then sit down and advise your client in advance of the case of the pros and cons, the pitfalls and the whys and wherefores of the case, shall be removed as an incentive. Frankly speaking, you can read your roomful of material, and you may have put 10 weeks’ work, or even 20 or 30 weeks’ work or two years’ work, into those 2,000-plus pages, but, according to the criteria, you will get your bog-standard fee that you would get for a shoplifting case or an assault case.

In an equitable world, that simply cannot be right. We go back to Tesco law. Yes, the Bar should be a business, and if we were businessmen, we would say that we do not want that case because it does not pay enough. We look at it as a vocational profession, and we have a sense of pride in our work. Criminal defence work makes up 95% of my work. I relish it and enjoy it. I do long hours, and it is a commitment. When I take a case on my own, as a barrister with a solicitor instructing me, I head up the team. If there is a QC, he or she heads up that team and takes ultimate responsibility. There comes a point in time when you have to make decisions on

your feet while you are in court on a daily basis and someone’s liberty is at stake, particularly now with the new sentencing regime under the 2008 legislation. Through that, there will be an increasing number of indeterminate sentences, life sentences and extended sentences, all of which come into the mix. If Tesco wants to come in and do the hours that we do, by all means —

Mr McNarry:

It opens 24 hours a day seven days a week.

Mr Mulholland:

But you will find that the shop assistant goes home at 5.00 pm. Unfortunately, when we go home, the work continues, as it does with members. The difficulty is that those who would otherwise do that work most efficiently and who would dispense with it in a way that brings experience to bear shall be the very people to say: “I would love to do it, but no, thank you”. That has been the experience in England and Wales. Ironically, in England and Wales there is still a VHCC system, there is still an hourly rate, and there are still those who earn over £1 million. That all still exists. We are trying to move away from all that and to bring a scheme with predictability. However, we laid our cards fully on the table from the start, and we said that Goldblatt McGuigan would work with the Courts and Tribunals Service to get a scheme within budget. Well, we all know the end result.

Finally, the fall-out of members is not exclusive to the Law Society. I have had seven pupils at the Bar. Members will recall that Gerarda Campbell came to a previous Committee meeting. She is a young lady at the Bar who is in her mid-20s and who is already more than £25,000 in debt. She spends her six months with me. She then spends time beyond that trying to get work and more time beyond that trying to get paid. In the meantime, she is trying to run her home, her family and everything else. This year, to my great disadvantage, I lost one of the most able junior barristers at the Bar, who has taken up a position in the Attorney General’s office. She did that because of the difficulties with getting work and getting paid. That dilution of quality is inevitable if the cuts come in the manner in which the Courts and Tribunals Service intends them to.

That is the far-reaching extent of it, coupled with, as Adrian has said, the fact that we have overheads. We may not have a multitude of staff in every office, but we have more than 30 staff in the Bar Library, and we have a significant building to pay off. It does not take any more than 60 barristers who do criminal work — that is less than one tenth — to leave the Bar Library and say that, because of hard times, they need to cut back on overheads and will no longer pay Bar Library subs. If that were to happen, the Bar Library would be unsustainable as a building, as an institution and as a bedrock of the justice system in this society. I do not say that emotively; I say that as a matter of fact, and it has been outlined in our paper.

Therefore, the implications are far-reaching. We certainly came at this issue with the perspective of trying to find something that everyone could work and that would bring it within a budget that, as Pearse said, started at £5 million, grew to £8 million and, by our savings alone — as proposed in our scheme — is a saving of £14 million per annum. So, we feel that that we have delivered, and then some, on the brief that we were given.

Mr O’Rourke:

You have seen the letter that we sent to the Minister. We were very upset by the fact that, having achieved the targets and been acknowledged to have done so by the Courts and Tribunals Service, it seemed to be unacceptable, and further cuts were to be made not having been mentioned to us in during the negotiations. That letter speaks for itself and how we feel about how the negotiations were conducted on what seemed to be the ultimate target of the Courts and Tribunals Service, which had not been conveyed to us in the course of the negotiation. The letter sets out our position.

The Chairperson:

Have you found these negotiations to be a goalpost-moving exercise all the time? I think that is the words that were used.

Mr O’Rourke:

Yes. It was with some difficulty that we were able to identify what the objectives were. When we had those objectives secured in order that we thought we could begin to engage accountants to achieve that purpose, it was somewhat upsetting to find that, having spent a great deal of time, effort and expense, we were wasting our time and that different considerations would be applied. That was disappointing.

Mr Mulholland:

On that point: I asked for Mr Nicholl’s permission to quote him, because this typified to me the sense and the mood. At the end of one of our final meetings, he turned to me and said:

“Never in 30 years have I experienced this.”

The Chairperson:

Mr McNarry:

Mr O’Rourke:

About two years ago, the Bar changed its code of conduct. It used to be that barristers were obliged to take every case that came their way. The Bar changed that to allow barristers to reject cases if they felt that the remuneration for the case was insufficient. It is up to each individual barrister to choose.

What will happen in reality is that some barristers will choose not to do the difficult cases. It will generally be the busiest, most able and most competent counsel who will have the choice to reject those cases. So, the most difficult, complex, voluminous and time-consuming cases will be dealt with by the less able people at the Bar, if they are dealt with at all. That will impact severely upon the justice system. We have tried to balance the fees that are payable whilst trying to maintain an adequate rate that will entice people to take the cases. If the fees are further cut in line with what the Courts and Tribunals Service has suggested, there will be counsel who will reject the cases and simply not do that type of work. That will be damaging for the system of justice. So, we have grave concerns that reducing the fees will push the criminal work down the food chain in the Bar Library system, and that will ultimately impact upon the consumer.

Mr Mulholland:

The Committee on the Administration of Justice (CAJ) has voiced concern on that very point about the fee cuts around the potential for miscarriages of justice and the lack of an impact assessment conducted on this issue. It is wide-ranging. Besides that, as Martin said, there is the impact on the most able doing those cases and declining to do so. In England and Wales, it has led to a marked impact on females and people from ethnic minorities at the Bar. It comes through to the judicial aspect. The most recent paper is the ‘Report of the Advisory Panel on Judicial Diversity 2010’, which relates to England and Wales. It refers to the continuation of cuts, publicly funded work, those who are most able not doing that type of work and that it therefore significantly reduces the quality of the pool of those who go on to become judges. So, it impacts at every tier of our system of justice and its administration.

Mr McCartney:

Thank you for your presentation. I meant to put this question to the Law Society. Forgive me for not doing so. I hope you do not think I am asking you something that I would not ask them. Have you had any discussion with the Law Society to come up with a joint plan?

Mr Mulholland:

We liaised with the Law Society throughout this process. If we can find a common way forward with it, we are happy to do so. A difficulty arises, in that there is a diversity of competing interests within the Law Society’s membership. Some solicitors do the high cost cases, some do the standard fees and some do both. The society has therefore to take all of that on board. If we can come up with something that still came within the budget of £79 million and that helped everyone, we are happy to do it. That something that we discussed with Goldblatt McGuigan.

Mr McCartney:

I am not sure whether it was in December, but in an earlier presentation, you said that the gap between the Bar Council and the Department was around £900,000. That is my recollection. The Law Society said that the gap in part of its proposal, notwithstanding the important disclosure issue, is around £600,000. So, at one time, we all expressed a degree of optimism. People talk about moving the goalposts and different things, but you said, Mark, that Tony made a comment about 30 years. Was that around procedure or figures?

Mr Nicholl:

It was around the constantly changing figures and what people were being asked to achieve. One of the initial papers put to us had £10·5 million in a budget for high-value cases. When we analysed that, the most that could be justified was around £3 million for such cases. We pointed out immediately that what needed to be saved could be saved — approximately £8 million — very quickly without doing anything, because there was something wrong with the budget that was being put to us. So, we had issues with the papers that were being put to us.

Every time we started to analyse the data and come up with proposals, they kept shifting. In the end, there was a shift that was not actually disclosed. Behind the scenes, they were trying to achieve a 28% reduction, having brought us along the path of trying to achieve 17·5%. In the backs of their minds, they always seemed to have a different target than the one being disclosed to us.

Mr McCartney:

Was that articulated as part of the discussion?

Mr Nicholl:

To be honest, it took a long time to draw it out.

Mr McCartney:

How do you propose to build disclosure into the new system?

Mr Mulholland:

That is very simple: it should be part of the criteria. A page count is a very crude yardstick, and it is one that has been cut and pasted from England and Wales. It is being used here because the Courts and Tribunals Service/Legal Services Commission can use a page count to verify the amount of work, as they see it, in a case. They do it objectively, because they find out from the Public Prosecution Service how many pages and how many exhibits make up the prosecution bundle.

They cannot do that for disclosure; or, at least, it is more difficult to do it. Therefore, they simply ignored it. We have suggested that, if we are going to use the crude instrument of page counting, people cannot close their eyes to disclosure, which has to form part of that.

How do you bridge that gap?

Mr O’Rourke:

There is no gap. Our proposals meet the budget. We might have some issues with the Law Society. The accountants for the Law Society, Harbinson Mulholland, might have to have negotiations with Goldblatt McGuigan to see whether there are any issues between us. However, from the Bar’s perspective, our proposals meet the budget. You should also bear in mind that, in meeting a budget of £79 million, that does not apply for the next two years. A two-year review is built into the process, so anything that was implemented on our terms would be subject to review. There would be an ideal opportunity to take stock at the end of that period. Until then, the budget is £85 million, so there is a little bit of surplus to work with in the meantime. You could take stock statistically after those two years to see where we stand, and, if there were any difficulties, they could be ironed out at that stage. There is a way forward if the Courts and Tribunals Service were to —

The Chairperson:

Mr O’Rourke, there is a gap. I have a paper in front of me from the Courts and Tribunals Service that states very clearly:

“The Bar Council’s proposal would increase legal aid paid to counsel in 23% of Crown Court cases. The Bar’s proposal makes no reduction in the fees paid to barristers in cases lasting up to 25 days that go to trial (23% of cases).”

“Instead, the Bar Council proposal would increase “refresher” fees, paid to barristers for attending court, in these cases”.

It goes on to state:

“The Bar Council proposal savings rely heavily on savings to be made by cutting the Guilty Plea 1 (GP1) fee by 45%. NICTS believes that there is a risk that a reduction on this scale would lead to more cases proceeding to the Guilty Plea 2 (GP2) stage, which would mean that the projected savings would not be made. It is understood that this proposal is opposed by the Law Society.”

I can only read what is in front of me.

Mr O’Rourke:

First, quite apart from the right of the client to have independent legal advice before he is arraigned, if the fee were payable irrespective of whether he pleaded on arraignment or after, there would be no issue regarding the date on which he pleads.

Secondly, as far as I am aware, the courts, particularly the Court of Appeal in this jurisdiction,

have indicated that, if an early plea is not entered, the client will be penalised. I am not aware of any lawyers who are forcing cases beyond arraignment with not-guilty pleas simply to get an enhanced fee.

There would be an ideal opportunity in the next two years to monitor the situation. That is why I am suggesting that, if the Bar Council’s proposals were implemented, there would be a period of time to reflect on this. Statistics could be compiled and analysed in due course so that we could see where we are going. Such revision as is necessary could be made.

No. It has been some time since there has been any direct engagement with the Courts and Tribunals Service, simply because it reached the end of the line some time ago. Our proposal was there. It seemed that there was an expectation that, save for nominal sums — bearing in mind the overall budget — we were very close to meeting its expectations. That then dissipated, and there has been nothing beyond that; neither an explanation for the new budget nor any effort or view to try to restructure proposals that could work within a scheme other than that which the Courts and Tribunals Service is now keen to move on with.

I have taken on board what Mr McCartney said. There is clearly a degree of urgency to this, because, as I understand it, the Courts and Tribunals Service is keen to push the proposal through. In fact, I think that the intended timetabling for it is within the next number of weeks, or months at the most. From our perspective, we are certainly content to work with the Law Society to see if there can be a unified and joint approach. However, there is clearly a triangulation of interests, and it will take the Courts and Tribunals Service to acknowledge and accept that, subject to coming within budget, that is something that would not only be entertained but, if we achieved that objective, would be agreed to.

Mr O’Rourke:

When Mr Crawford presented evidence to you on 7 December, he was pressed by Mr McDevitt about the Goldblatt McGuigan proposal and was specifically asked if it met the objective of the £79 million. He said that:

“It delivers a solution at or about the £79 million.”

However, earlier — this is the real issue, as far as we can see — he said that:

“we made the assumption that we needed to get below budget while, at the same time, we were concerned that, if we did a little bit better, it would be a fair cut to legal aid compared with other areas of public expenditure, without damaging access to justice.”

The position seems to be that they got to the budget situation but are trying to do a little better without — he said — damaging access to justice. There are two points. First, we do not need to do any better, because the £79 million was the objective. Secondly, they have misjudged the damage that would be caused to access to justice. On both counts, he is wrong. That is where the issue crystallises between us.

The Chairperson:

Let us suppose that this Committee were to adopt your proposals and go down the road that you want us to. Your position is that you are already opposed to restrictions on assignment of counsel. That represents savings of £1∙5 million. You do not support the introduction of criminal legal aid testing, which would amount to annual savings of £0∙5 million. Supposing we were to go with your proposal — and I am not saying that we will — would you change your stance on those issues?

Mr Mulholland:

Maybe Mr Nicholl can answer that from an accountancy perspective first.

Mr Nicholl:

Inclusive of those two figures — the £1·5 million and the £0·5 million — and the expenditure forecast of the Legal Services Commission (LSC), based on our figures, including the expected administrative and civil legal aid savings, there is a budget surplus of about £5 million. It can easily absorb the £2 million that you referred to. That is the extent of this.

The Chairperson:

You will forgive me for saying it, but this is like wrestling with smoke. So many figures are being thrown at us from so many angles, and everyone refutes everyone else’s figures. Accountants would have a field day in here. To assist the Committee to get a handle on this, can you tell us whether you are now saying that the proposal is not necessary and that you already have that built in?

Mr Nicholl:

I am saying that there is a surplus of £5 million based on the Courts and Tribunals Service’s own costings, not ours.

Mr Colton:

The proposition put forward by the Courts and Tribunals Service on the two counsel issue was based on very limited data, for one year only. A lot of information about where that figure came from was missing. We raised that in June 2010 and asked questions about it. It is our clear view that, since the whole debate started, there has been a reduction in senior counsel in any event. I can tell you that, without any change in the rules, there has been a reduction. It will be interesting to see if the Courts and Tribunals Service has the figures for more recent years. There has already been a significant reduction in senior counsel.

I made a point earlier about the equality impact assessment. If that money is to be taken from another part, where is the process for that? It is almost as though a pot of £4 million is going spare. This is not £40 in the back of somebody’s purse. I say that with all due respect. This is big money. If it is going to come out of the legal aid end of the criminal justice system, what is the impact of that? That is a really key question for me. We agree about the reform of fees. I think that everyone agrees that that needed to be reformed and to be made much more understandable. However, will the money come from family courts? What is the impact?

At that point, the Department’s option was the graduated fees scheme, and that was the basis on which negotiations and discussions began.

In the letter of 14 December, which I think members have seen, the Bar referred to a letter written by David Lavery that is dated 14 May. It quotes the paragraph in which he talks about the discussions. Later in that same letter of 14 May, David Lavery says:

“At the outset of the consultative dialogue process I explained that our fall-back position would be the implementation of the further changes which we have published for consultation, including the introduction of the Graduated Fee Scheme.”

So, on 14 May, after we had been in discussions for several months and not reached an agreed position, the director of the Court Service, writing to the chairman of the Bar in the same terms as several months previously in December, is still saying that the position of the Court Service, if no agreement is reached, is the graduated fees scheme. I am trying to bring out the fact that the aim of the negotiations and discussions was to achieve an agreed way forward but that the Court Service’s fallback position was the graduated fees scheme.

In the event, I think we have got a better way forward. Many of the concerns and issues that were raised in those discussions are met by introducing a Northern Ireland bespoke scheme. It meets a lot of the issues that the Law Society and the Bar Council wanted. They have actually got quite a lot out of the process. It is a Northern Ireland scheme. It is not the graduated fees scheme. It does not have the contracting arrangements that exist in England and Wales and that are responsible for some of the comments that you have heard about wastelands. The wastelands issue is not just about fees; it is about the contracting arrangements that exist over there but which are not in place here and which we are not introducing.

At the end of the letter to the chairman of the Bar Council, David wrote:

“This remains our position, and I believe that it is one which will command the support”

of the Minister. Basically, at that point, 14 May, he says:

“If you consider that it would be helpful to pursue the consultative dialogue for a further short time, I would be willing to accommodate this provided there appears to be some prospect of a positive outcome. It would, however, be necessary that the consultative dialogue should conclude by the end of this month in order to allow us sufficient time to bring-forward the necessary legislation to give effect to the next stages of our reform programme.”

That is the context in which those discussions happened. The Court Service was trying to implement a particular proposal. It met with a lot of resistance. Meetings took place. It was not a completely open discussion in that sense, because you will see nothing in that about saying that we would like to have some meetings to agree proposals to reach the Budget.

What was made clear in the discussions was that anything that was agreed had to meet the budget target of what was then £79 million.

The papers provided by the Bar outline the various proposals that it made during the process. The impression is created that everything that was presented to us was in pursuit of the objective of reaching a budget of £79 million. The first proposal referred to in the Goldblatt McGuigan papers would have increased the hourly rate for VHCCs to £250, with an uplift of 100% to potentially £500 an hour, from the then figure of £154. That would have been completely beyond the budget. The second proposal was for an extended grid system, and we were very grateful for the approach taken. In the end, that became the basis of what we put to you. However, again, the figures for that extended grid system would have taken us well beyond the budget.

It was only after that period when things appeared not to be going too well. It was into May and June when we started getting the proposals coming into line. In fact, the Bar’s own proposals, in the form in which you have seen them, were not presented until after the consultation period began. We were advised that it would be prepared to move to a position that would deliver a 10% saving on standard fees, but it was not prepared to table that proposal unless it was certain that I would agree it. There were flaws in its proposal. Maybe I should stop there, because I could go on with that for quite a while.

The Chairperson:

The paper that you made available to the Committee with a covering letter dated 2 February — you have heard us ask the Bar Council about this point, and you heard the reply — states:

“all of the £2.8m in other annual savings proposed by NICTS will be made, yet the Bar Council does not support all of these additional savings.”

The Bar Council emphatically stated — I do not think I am overdoing it when I say this — that it was not necessary, because the savings were already there.

Mr Crawford:

I was surprised to hear the representative of Goldblatt McGuigan saying that, because I do not know where the extra £5 million is. If there was another £5 million surplus in the Legal Services Commission budget, I would like to know about it, and I would be grateful if you would tell me where it is. We do not think there is any spare cash of that nature. What we are working on is the budget that we have, and which has, I acknowledge, recently changed. I cannot see how those could be accommodated in some other pot of money.

Essentially, we are looking at savings of about £17 million to come from a forecast figure of £96∙5 million to £79 million, or a little bit beyond, if you take our figures. That is then supplemented by a further saving of £4 million from administration and civil legal aid, which takes us to £75 million. I cannot see where the £5 million exists.

The Chairperson:

Thank you, Mr Crawford.

Mr O’Dowd:

The Committee has three proposals before it, all of which, we are told, come in on budget. Do you accept that all three are on budget? You accept that yours is on budget, but are the other two?

Mr Crawford:

I have not seen the detail of the Law Society’s most recent suggestion, but if it is moving from a 25% cut to a 10% cut, that amounts to around a £1∙5 million additional cost, i.e., savings foregone. That would bring the Law Society back beyond the budget. That is off the top of my head, so there may be some other subtleties in the proposal that I have not seen. It is not a million miles from it, but it is not quite there. The Bar’s proposal includes £325,000 in administrative savings. I think I acknowledged in the previous meeting that it was not very far away. It would leave it £250,000 shy of the budget if those proposals were accepted. However, there are others flaws in the proposals, and I defer to you, Chairman, if you want to ask about those.

Mr O’Dowd:

From my point of view, and that of my party, we want to see effective representation for people in court. That was referred to in the Law Society’s presentation. We are concerned about the comments about further cuts to the budget. However, if that has to be done with £75 million or £79 million — whatever the figure is — that is what we are measuring it against. I sense a frustration from you and the other parties about the negotiations. I am not sure whether this process helps those negotiations, because you are able to listen to each other and then drag up the entrails of each other’s conversations and beat each other on the head with them. That does not make for useful negotiations.

Mr Crawford:

We try not to do that as much as possible.

Mr O’Dowd:

I understand that. Negotiations are frustrating. I am not just pointing the finger at you; I think it is coming from all sides.

Mr Crawford:

The Chairperson:

If I could just intervene to say that I have a copy of the Hansard report of the Justice Committee meeting of 25 January 2011, in which there is mention of discussions. Mr Harbinson said:

“I know that the Minister and Robert Crawford are having ongoing discussions with the Bar Council and the Law Society, but I could not tell you the exact position.”

He goes on to say:

“So, we would still have had reductions in those budgets anyway as result of the impact of the negative Barnett consequentials. To maintain the budget at £79 million would have meant taking more money out of somewhere else, if you understand what I am saying.”

So, I think that it is quite clear where the cuts are coming from and why they are there. They have been imposed.

Mr A Maginness:

My point, Chairperson, is about the manner in which this process has been conducted. I think that it is quite unfair to say to people, “By the way, this is only a discussion; this is not a negotiation.” It is the wrong premise on which to approach a process of this kind.

Furthermore, on foot of the news that there has been a reduction, for whatever reason, from £79 million to £75 million, you did not go back to the party that you had been talking to and say, “By the way, there is nothing to worry about here. This does not affect the basic figures that we have been discussing with you.” I think that that is an unreasonable position for the Department and the Courts and Tribunals Service to adopt. It is not fair to the people with whom you have been conducting the process, and it undermines the credibility of the Department.

The Chairperson:

In fairness to you, Mr Maginness, at that same meeting, in response to Mr Harbinson, you said:

“I do not understand that at all.”

Mr McCartney:

I would not get hung up on the words; it is about the process. The Bar Council referred to discussions in some of its letter. I think that we all accept that the process has not been what it should have been, whether it involved negotiations or discussions. I think that we all accept that the process has led us to where we are, and there is a still an air of confusion. We are no nearer to resolution, and that is the worrying thing.

Mr Crawford:

The point is that the process has not produced agreement, but, in his letters, David Lavery makes it clear that, if agreement were reached, he would be prepared to put it to the Minister. However, in both letters that I quoted from earlier, the Department’s fallback position, if agreement were not reached, was the graduated fees scheme. Chairman, I am referring to letters that David Lavery wrote to the chairman of the Bar Council, which I do not think you have in front of you.

My point is that the discussions or the process delivered for the legal profession a very considerable amount of what it wanted, even though agreement was not reached. It has been put to us that we would have been 90% successful if we had adopted one or other of the proposals, but I could also say that they have been very significantly successful without getting any agreement in the sense that the position of the Department of Justice and the Courts and Tribunals Service has moved to a Northern Ireland-based position. We are not adopting a graduated fees scheme, and we have accepted a number of the representations that were made during consultation — or rather the Minister has said that he is minded to accept those, pending comments from the Committee.

I would like to refute the idea that we did, in some way, negotiate in bad faith. We have actually taken on board quite a lot of what the profession suggested. Unfortunately, the Minister is not in a position to accept the other proposals that it has put forward.

The Chairperson:

OK, folks, we will stop there. We have probably exhausted this issue and ourselves. Mr Crawford and Mr Halliday, I thank you for your attendance here today.

COMMITTEE FOR JUSTICE

OFFICIAL REPORT (Hansard)

Remuneration for Defence Counsel in Crown Court Cases

10 February 2011

Members present for all or part of the proceedings:

Witnesses:

The Chairperson (Lord Morrow):

Ms Elizabeth McCaffrey (Law Society of Northern Ireland):

The Chairperson:

Mr Pearse MacDermott (Law Society of Northern Ireland):

The Chairperson:

Mr MacDermott:

The Chairperson:

Mr MacDermott:

The Chairperson:

Mr MacDermott:

Mr McDevitt:

Ms McCaffrey:

Mr MacDermott:

Mr McDevitt:

Mr MacDermott:

Mr McDevitt:

Mr MacDermott:

Mr McNarry:

Ms McCaffrey:

Mr McNarry:

Mr Peter O’Brien (Law Society of Northern Ireland):

Ms McCaffrey:

Mr McNarry:

Mr MacDermott:

Mr McNarry:

Mr MacDermott:

Mr McNarry:

Mr MacDermott:

Mr McNarry:

Mr A Maginness:

Mr McNarry:

The Chairperson:

Mr MacDermott:

Ms McCaffrey:

Mr O’Brien:

Mr McNarry:

Mr MacDermott:

Mr McNarry:

Mr MacDermott:

Mr McNarry:

Mr McCartney:

Ms McCaffrey:

Mr O’Brien:

Ms McCaffrey:

Mr McCartney:

Mr MacDermott:

Mr McCartney:

Mr MacDermott:

Mr McCartney:

Mr MacDermott:

Mr McCartney:

Mr MacDermott:

Mr McCartney:

Mr MacDermott:

Mr McCartney:

Mr MacDermott:

Mr McCartney:

Mr MacDermott:

Mr McCartney:

Mr MacDermott:

Mr McCartney:

Mr MacDermott:

Mr McCartney:

Mr MacDermott:

Mr McCartney:

Mr MacDermott:

Ms McCaffrey:

Mr O’Brien:

Mr McDevitt:

Mr MacDermott:

Mr McDevitt:

Mr MacDermott:

Mr A Maginness:

Mr MacDermott:

OFFICIAL REPORT
(Hansard)