Select Committee on Northern Ireland Affairs Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)




  1. We are extremely apologetic to have kept you waiting in the corridor in the way we have. It will not improve matters at all if I say this is the first time we have ever done anything like this to a witness. I hope you all believe that we are in a position where, given the fact we are uncertain how long this Parliament is going to last, there was one matter which we needed to resolve before we went into public session with yourselves. We are extremely sorry you should have been inconvenienced by that course of events.
  (Lord Bach) We were not inconvenienced at all. I think by the end of session, because of my throat, you will be inconvenienced by me.

  2. A very warm welcome to you, my Lord, and to your colleagues. The ground rules under which we operate, which I think are probably familiar to you, is that we will endeavour to make our questions follow a logical order so that we are not constantly jumping round, although it may mean we jump around the horseshoe. You should feel entirely free to gloss any answer you give, either today or in writing afterwards, if you feel that there is something that we might have misunderstood or which you wish to expand further. Likewise, we would regard ourselves as free to ask a supplementary question in writing if there was something, on reading the transcript, which we had not wholly followed. I understand there is a possibility you might like to say a word or two as an opening statement. If that is so we would be delighted. We have the advantage of knowing who your colleagues are, because their names are facing us, but if you would like to introduce them please do that as well.
  (Lord Bach) I will be as quick as I can in my opening remarks. I am grateful for the opportunity to bring to the Committee's attention some of the issues which I think it is important to highlight at the outset. May I introduce Glenn Thompson, the Director General of the Northern Ireland Court Service, who is on my left, and Alan Hunter, the Director of Legal Aid, who is on my right, who are here with me to assist the Committee. I will not hesitate, with your permission, to ask them to deal with matters that I am not able to. It is more important that you should find out what we are thinking.

  3. If it helps your voice we would be content for them to be answering questions that you yourself would have been answering otherwise.
  (Lord Bach) Thank you. As members of the Committee will know, the Northern Ireland Court Service is a department of the Lord Chancellor and supports the Lord Chancellor in the exercise of all his functions in Northern Ireland. The memorandum that was submitted to this Committee last April gives an overview of how the present scheme works in Northern Ireland, and it will be obvious that the Government has many concerns about a number of aspects of the current scheme. When we came into office four years ago, we were committed to a review of many aspects of the Legal Aid Scheme in England and Wales and that review resulted in the Access to Justice Act 1999. It was obvious to the Lord Chancellor on taking office that there had been no substantial reform of legal aid in Northern Ireland since the Legal Aid Advice and Assistance (Northern Ireland) Order 1981 had been made. That piece of primary legislation remains the existing legislation governing legal aid in Northern Ireland now. What we had in mind in initiating the reform agenda was not some minor tinkering with an outdated system but a root and branch review. At the same time we recognise, and this is very important, there are features unique to Northern Ireland and those need to be taken into account. What we were looking for was a Northern Ireland answer to a Northern Ireland question. What we did not want to do was get caught up in the small detail of issues which might otherwise blur the major issues which need to be addressed in order to deliver a modern, transparent legal aid system, both up-to-date and also taking account of local factors in Northern Ireland. May I say now that the Government very much welcomes the keen interest which your Committee takes in the issue of legal aid reform in Northern Ireland. It is a technical and difficult subject and we are committed to listening to all of those with an interest in these matters. It goes without saying that your views and recommendations will be invaluable in our working through the detail and the practical application of much of what we are seeking to do through setting up structures under the new Order in Council. The Lord Chancellor set out the objectives of the Legal Aid Review in his consultation paper Public Benefit and the Public Purse published in June 1999 and they were repeated in the White Paper published on 19th September last year. I believe the solutions to the local issues set out in the White Paper will deliver our objectives. The issue in cost terms we cannot run away from is this, we have to face the increase in the Legal Aid Fund. Between 1990/1991 and 1999/2000 the net fund expenditure increased from £12.19 million to £34.65 million, which represents an increase of 116 per cent in real terms. We do not think this rate of increase can continue. We have completed our review. We have a framework for a new legal aid system set out in the White Paper, The Way Ahead. It is right to say that many of the details need to be worked out and we intend to do that in consultation with all interested parties, as we have done up to now. Further consultation will take place when the proposal for the draft Order in Council is published in the autumn of this year. We have indicated to the consultees that working groups will be established to look at various key issues which need to be worked through in detail. We have listened seriously to representations made during the consultation process and the White Paper sets out a Northern Ireland answer to a Northern Ireland question. We have not imported a different legal services culture into Northern Ireland. We believe that the consultation process has resulted in each of the consultees who responded to the paper being engaged in the process and that the structures and solutions set out in the White Paper will deliver a legal aid scheme for Northern Ireland which is appropriate to the size and nature of the community as a whole. I hope these few comments are of some assistance in setting out our thinking. I am going to close now because what is important is what you have to say, and more important still, that which you have to ask. I will attempt to answer all of the questions.

  4. Thank you very much indeed for that. Let me ask one or two ground-clearing questions to start off with. In terms of your proposal for a draft Order in Council to implement the new system of legal aid in Northern Ireland, when do you expect to bring that forward?
  (Lord Bach) We hope there will be draft legislation by autumn 2001. We hope that following that we would be able to place the draft legislation before the Assembly for them to consider, it they choose to do so. We have written to the Bar and the Law Society in Northern Ireland setting these matters out.[3]1 We hope that the Legal Services Commission, which would run the legal aid system in Northern Ireland, would be up and running by October 2002. This is our present timetable and we want to keep to it, but it is subject to continuous review. I want to make the point again, if I may, at all stages we hope that the consultation process will continue, particularly after the draft legislation is published.

  5. If I can get you to expand on the figures you mentioned in your opening statement. When Mr Vaz published his forward consultation document he drew attention to the fact that the net expenditure on legal aid per head, and the cost of proceedings in Northern Ireland, are much less than in England and Wales. What view does the Government take on why this is so and, in particular, are costs lower in Northern Ireland or is there a lower legal aid take-up than in England and Wales?
  (Lord Bach) Chairman, you are undoubtedly right, there is a lower per capita spend, that, I think, historically has been true. In similar matrimonial cases the rates are set by the Taxing Master under the supervision of the High Court and, of course, in criminal cases there are standard fees. It is right to say that the Appropriate Authority takes a decision in a large number of criminal cases. We think the hourly rate, we have considered your question, is a reflection of both overheads and profits. What we need to do when setting new standard fees, which is one of our purposes, is to engage closely with the professions and others to find out what the actual overheads are. I have to say there has been some reluctance to discuss those with us so far we hope that may change. The answer to your question as to why there is a lower per capita cost—I suspect the best I can do is to say that it is historical. It may be that there has not been so much litigation, I know not. What concerns the Government, of course, and would concern any government, is the large increase that there has been in net fund expenditure over the last nine years between 1990-91 and 1999/2000. We do not think there is really any satisfactory explanation for that.

  6. I want to ask one supplementary question arising out of the comparison about which I was asking; has the expenditure gone up in Northern Ireland significantly faster over that decade?
  (Lord Bach) Yes, it has. I am not saying it has not gone up fast in England and Wales. From the figures I have, the equivalent of a 116 per cent increase in England and Wales is 88.1 per cent over the same period. To break it down a little bit more, I hope for the convenience of the Committee, in the criminal law field the increase has been 205 per cent in Northern Ireland, I am talking about real terms, as opposed to 82 per cent in England and Wales. In civil legal aid it is fair to say the increase in real terms has been higher in England and Wales, 94 per cent to 82 per cent.[4] As you will know, Chairman, we have taken steps as far as civil legal aid is concerned in the Access to Justice Act and in the setting up of conditional fees in a large part of what was the civil legal aid budget. I hope that is a help.

  7. That is helpful. To ask an expenditure question, can you remind me if provision has been made for expenditure in each of the next three years in the three categories, one, criminal legal aid and then a breakdown between civil non-family and civil family; is that expenditure already in the public domain?
  (Lord Bach) I will not be able to answer the detail of your question, I am afraid. I can say that the provision under the Spending Review of last year, SR 2000, is some £43 million per annum, covering both the Legal Aid Fund and the administration grant, the grant-in-aid. Work is presently under way in determining financial allocations between the various fields over the next three years. We will try and find out how far those discussions have got and write to the Committee.[5]

  8. That £43 million is the figure in the third year.
  (Mr Thompson) It is the same figure across each of the three years.

  9. Can I clarify how that compares with the figure of £34 million, which was quoted in the Minister's opening statement.
  (Mr Thompson) The figure of £34 million was 1999/2000, we are dealing now with 2001/2002. Expenditure last year, Mr Chairman, on the Legal Aid Fund was of the order of £38 million.

  10. £38 million.
  (Mr Thompson) There was a grant-in-aid to the Legal Aid Department in excess of £2 million. We are anticipating an increase in spend over the three year period. We hope to see some of these reform changes coming into place towards the end of the period and then more effectively in the next financial cycle, which would be SR 2002; we certainly hope to see some real benefits of the changes that we are making. There is a time lag, where the present system runs as it is until the new Order in Council is enacted and we have the new arrangements in place.

  11. In the percentage differences between England, Wales and Northern Ireland the Minister gave me a moment ago, it did actually affect a breakdown between criminal and civil?
  (Mr Thompson) Yes.

  12. In your figure leading up to £43 million are there similar projected breakdowns or is it simply an agglomerated figure?
  (Mr Thompson) At the moment it is a total figure. We are discussing the detailed breakdown of that at the moment. We hope to have within the next month a full picture of how that total figure will be broken down between criminal, civil, grant-in-aid, and so on.

  13. Do you have a break down of the £38 million?
  (Mr Thompson) We do.

  14. We do not need it now, but it would be helpful to have it after the event.
  (Mr Thompson) Yes.[6]

  (Mr Alan Hunter) Perhaps I could clarify in terms of the recently finished financial year, the profile would indicate about 60 per cent of the £38 million is criminal legal aid.

  15. 60 per cent of the £38 million.
  (Mr Alan Hunter) Yes.

  16. I will not ask you questions about the year-on-year percentage increase because it sounds as though we do not have an update to be able to make that judgment. If you are able to give us a year-on-year increase over the three years and compare them to three prior years that would be helpful?
  (Lord Bach) We will certainly do that.[7] Can I make one other point about the 1990/1991 and 1999/2000 figures, that is between criminal and civil legal aid, the percentages are interesting: of the fund 48 per cent went on criminal in 1991, that was up to 67 per cent by 1999/2000, whereas civil went down from 23 per cent to 20 per cent. The rest are made up of the ABWOR and legal advice and assistance. There was a big increase in criminal legal aid expenditure, something we should bring to the Committee's attention.

  [Chairman:] We would have inferred that from the figure you quoted before of a 205 per cent increase in Northern Ireland over last 10 years as against 82 per cent in England and Wales.

Mr Andrew Hunter

  17. Lord Bach, leaving aside the terrifying increase in the cost of legal aid over the last 10 years, can you select from the memorandum or from your wider thoughts, in what other respects the present system is unsatisfactory?
  (Lord Bach) Yes, I will do my best to answer that. I think it is important to point out there has been no real reform for 20 years. The system that prevails at the moment is really the equivalent of the 1974 Legal Aid Act system that applied in England and Wales until 1988. We think that the administration arrangements under the present system have been unsatisfactory, and we are not alone in thinking that. All of the consultees, whatever their views on other matters, were confident that we were right in removing the running of the legal aid system effectively from the Legal Aid Department of the Law Society. We accept the excellent work that the Law Society has done in that regard but it is time to pass it on to an independent service, the Northern Ireland Legal Services Commission. We think one of the weaknesses of the old system was that it was not transparent enough in the sense that it will be under the Legal Services Commission. We have referred to increases in costs. We do not think there is any flexibility under the present system in respect of targeting the social need agenda. I mention that specifically because the Northern Ireland Assembly has, on a cross-party basis, made it clear that social need is a key aspect of the Northern Ireland Executive Programme for Government. We feel that our changes, particularly with the Funding Code, can make it easier for the limited amount of money that there is for civil Legal Aid to go in the field of social need, rather more to go in that field, than has been going into it in the past. We think the system is out of date. We think the administrative arrangements are unsatisfactory. We do not think it caters for social need sufficiently. Then, of course, we come back to the point about costs as well. That was rather a full answer I am afraid.

  18. Do you think that addressing the imperfections in administration, making the system more transparent and focusing more on social needs, will these three ingredients have a cost implication? Will they help reduce the costs?
  (Lord Bach) That absolutely depends on the system that we set up. As far as criminal legal aid is concerned we, of course, intend to go down the standard fee route. There are standard fees at the moment, as I said in my opening, but it has to be admitted that the exceptions to standard fees have been the rule rather than the exception for the last few years, so the standard fees system has not worked particularly well. We are determined that the new standard fees for criminal legal aid will be there and exceptions will be very, very rare indeed. We hope in that way - although, of course, you cannot cap criminal legal aid costs, because it would be wrong to do so, it is necessary for human rights purposes, as well as anything else—there should be sufficient money for people who are charged with criminal offences. It is what we do in the civil legal aid field that is crucial here. Let me be frank, we have not yet decided on what sort of system we are going to adopt in terms of conditional fee agreements, CLAF, or some third way between them, in order to try and counter the increased cost of civil legal aid. Our Funding Code, which will set out priorities for spending—and I hope I may be able to say a few words about that later—will set the priorities for our civil legal aid spending. We think by using a Funding Code and having a capped budget for civil legal aid we will really affect costs.

  19. Yes. Thank you for that. Turning to another point, I eventually passed to your office allegations about irregularities in the payment of Legal Aid through solicitors to those who helped prepare cases. Leaving aside those specific allegations, because the rest of the Committee is not aware of them, in general terms do you believe this may be or may have been an area for abuse or irregularity?
  (Lord Bach) I am not going to talk about individual cases, and I am grateful to you for having sent me the papers. I have written back to you this week. No, I have no evidence from which I can say that there has been the kind of misbehaviour, to use a neutral phrase, that you suggest, but, of course, what you have sent to us will be examined and is being done with great care and with as much haste as possible in order to see whether there has been any mismanagement. I am not prepared to say that the present system must go because there have been proven cases of misbehaviour. I cannot go that far, and it would be wrong for me to do so.

3   See also Ev. p. 24. Back

4   Note added by Witness: For revised statistics, updating some of the figures given in this answer, see Ev. p. 26. Back

5   See Ev. p. 24. Back

6   See Ev. p. 24, 25. Back

7   See Ev. p. 24, 25. Back

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