Examination of Witnesses (Questions 40
WEDNESDAY 25 APRIL 2001
40. I was referring specifically to the number
of counsel. Is the assumption that the courts have been too free
on this, and is the expectation that there will be less as a result
of the Legal Services Commission making the decision?
(Lord Bach) I would not agree with the assumption,
but I would say that what we are trying to do in this particular
field is to make sure that the rate of increase in spend on criminal
legal aid is to some extent cut down, but not the price of justice,
and you can draw what implication you like from the way in which
I put the answer to your question.
41. Thank you. If I could pursue this one more
second, what I am really trying to figure out is, is there any
evidence that you can cite that shows that the courts have permitted
too many counsel, and that this change is justified?
(Lord Bach) I have not agreed with the assumption,
but I am reminded that I should point out that in England and
Wales recently the criteria that judges are asked to fulfil, as
far as whether there should be two counsel in a case rather than
one, is being very much strengthened, because it was felt that
there were in England and Wales too many criminal cases where
there were unnecessarily two barristers involved one of whom might
or might not be Queen's Counsel. We are approaching it in a slightly
different way in Northern Ireland. We are not saying that in the
past things have been done wrongly, because we are coming out,
hopefully, of a period of considerable troubles where there have
been some very large criminal cases of a most serious nature where
it has been quite appropriate for there to have been two counsel
representing those charged with those very serious offences. We
hope that the situation is improving now and it will not be so
necessary for there to be two counsel, whether they be QC and
a junior or two juniors, in cases in the future.
42. Thank you very much. Can I ask now a simple
point about the "interests of justice". I understand
that is going to be defined in legislation. Will it be defined
according to the criteria of the Widgery Committee, or will there
be any changes in the definition?
(Lord Bach) It will be defined as the Widgery Committee
in 1966 defined it, but in statute for the first time.
43. So all that will happen?
(Lord Bach) The answer is yes.
44. Thank you, Chairman. My Lord, gentlemen,
I am very grateful to you for the evidence you have given. There
are many of us who do not have your experience, my Lord, in the
legal profession. In my case my experience of the law has tended
to be from the perspective of the defendant, but I have certainly
learned a great deal this afternoon. I note with gratitude that
we are being audited by the distinguished jurist, Professor Austin
Morgan, who is here making notes at the back of the room. Having
said that, and reluctant as ever to offend the Northern Irish
Bar or any members of the legal profession, can I possibly ask,
why is it proving so difficult to find out what they earn?
(Lord Bach) I think that of all the many questions
that I have been asked this afternoon, that is by far and away
the most difficult to answer. There is a serious point to be made,
because there have been requests made that with regard to those
who are, as it were, the high salary earners, both solicitors
and barristers, it should be public knowledge what they earn because,
after all, they are earning public funds, the taxpayers' money.
However, there is a security argument to counter that, and the
Government has not yet formed a view as to which of the various
arguments that go either way there will prevail. There is no argument
in principle why what lawyers earn from public funds should not
be publicly known, but in practice, where there are security implications
and we are advised that there may be, we have to be careful before
allowing that to happen; because, after all, the security implications
are something whichand this must be saidboth the
judiciary and all lawyers working in Northern Ireland have had
to face for many years now, in a way in which people like me,
who used to practise at the English Bar, frankly have never had
to face. I think that is something that should be put on the record:
that the Government, any government, would be grateful for the
work which the legal profession and the judiciary have done in
Northern Ireland and still continue to do, sometimes in difficult
45. I think, my Lord, that one is acutely aware
of the murders of distinguished jurists in Northern Ireland. I
am thinking of one particularly notorious case in Northern Ireland
a few years ago. One recognises the security implications. Is
it perhaps an aspiration that a Scottish system of transparency
may prevail in the future? Could I perhaps lead you in that direction?
(Lord Bach) I shall turn to Mr Hunter.
(Mr Alan Hunter) I think that these are public funds
and lawyers are being paid out of public funds. It is clearly
taxpayers' money, and clearly the taxpayer is entitled to know
how that money is spent. The Scottish system obviously is a factor
which the Commission would want to look at at that stage when
the Commission is in place, and it is something which the government
of the day would no doubt wish to consider in terms of the current
climate in Northern Ireland.
46. I thank you for that answer, and it would
be inappropriate to press it further. Can I refer to some very
robust language from the Legal Aid Advisory Committee who criticised
the procedure for assessing criminal legal aid fees as "cumbersome
and lacking in transparency". Is this fair?
(Lord Bach) I shall ask Mr Thompson to come in on
(Mr Thompson) This relates to the criminal costs rules
47. I suspected it might be.
(Mr Thompson)and the structures that were set
up at that time, which were designed to assist in bringing these
things more into the public view where lay people are involved
in the appropriate authority and have been since 1993. That was
a hope, that it would assist transparency. The system has been
cumbersome and payments have been slow. That has been one of the
areas where lawyers have been ready to talk to me about the need
for reform. So what we are trying to achieve in these reform proposals
is, on the criminal side, a standard fee system which will have
two effects. One will be paying standard fees but faster, and
we can also forecast accurately the potential demand on public
funds. So I think our reform proposals will go a long way towards
easing these concerns.
48. Are those reform proposals planned for forthcoming
(Mr Thompson) Yes.
49. Finallyand, my Lord, you have in
fact touched upon this point in your answer to my colleague Tony
Clarke earlier on, when he was talking about the Contingency Legal
Aid FundI think you have stated that you anticipated a
response from the Legal Aid Advisory Committee in June, which
I think was the date you gave?
(Lord Bach) End of June.
50. I am sorry. As ever, you are precise. I
was under the impression that there was going to be an interim
advice available to you by April of this year. Is that not the
(Lord Bach) The interim advice by April has been put
back. I am not sure, as I speak to you now, whether there will
be an interim report before the final report.
51. So April is June?
(Lord Bach) The interim advice was going to be April.
The final report was going to be after that, so it was probably
going to be May. If there is an interim report which comes to
me, it will probably be at the end of May or beginning of June,
but as I speak to you now I am not sure whether there is going
to be such a report. Maybe Mr Hunter can say something on that.
I did meet with Judge Smyth, and I agreed, of course, that these
dates could be put back, if that was the wish of the Advisory
Committee. Mr Hunter may be more up to date on that.
(Mr Alan Hunter) No, I cannot add much to what Lord
Bach has said, except that I do know that the Committee have commissioned
some research into this project, which has not yet started, it
is due to start some time soon, I understand. That may explain
some of the reason for the delay. Obviously they would if necessary
ask Lord Bach for an extension of time to take a full look at
all of these issues.
52. Government departments are sometimes accused
quite unfairly of timing the release of information to Friday
evenings or Sunday lunchtimes. In the remote possibility that
there may be other things on the nation's mind in late May and
early June, are you quite happy with that timescale?
(Lord Bach) Yes, I am. I do not honestly
think, if there was an election, that this is a huge election
issue in England and Wales, and I am pretty sure that there are
other matters in Northern Ireland that will affect the electorate
rather more than this. I think what is important is that the Committee,
coming up with an important report that we asked them to do, should
do it in their own time, providing it does not put out in the
long run the Order in Council that we will need in order to put
our reform in place. So I was very happy indeed to agree with
Judge Smyth that the final report should come to us before the
end of June.
Mr Pound: I am grateful to you for that reply,
for your earlier replies and, may I say, for your tolerance. Thank
53. It is unusual for the Chairman, in slightly
Irish mode, to communicate with one of his colleagues through
the witnesses, but I must confess, I was under the impression
that there was going to be an interim report in May. That is based
on reasonably recent conversations.
(Lord Bach) Thank you very much indeed. In which case,
I will ask Mr Hunter to check up on that and make sure that we
have not misled, unwittingly, the Committee.
54. No, I was not suggesting that.
(Lord Bach) No, of course not. We do not want to do
it unwittingly to the Committee. We shall check that out.
55. I am quite capable of misleading myself,
without any assistance. We have received representations that
voluntary advice agencies in Northern Ireland should be able to
employ qualified solicitors with rights of representation in court.
Does the Government take a view of that proposal?
(Lord Bach) I shall ask Mr Hunter to
deal with this.
(Mr Alan Hunter) The White Paper is setting out a
number of proposals which would allow the Legal Services Commission
to procure legal services in a flexible way, depending upon the
market and depending upon the nature of the particular service
which the Commission requires to procure. In terms of the not-for-profit
sector, the Government has been extremely impressed by the service
which the Citizens' Advice Bureaux, the Law Centre for Northern
Ireland and many of the other representatives who met with the
Ministers, deliver. The funding arrangements, as introduced under
the Legal Aid Order in Council, will certainly enable the Legal
Services Commission to procure those services through salaried
lawyers in the not-for-profit sector. There is an issue, though,
which I suspect may be driving your enquiry, in terms of the self-regulation
of the Law Society of its own members. In practice, there are
in fact at present, as far as we are awareand it is so
far as we are awareonly two lawyers employed in the not-for-profit
sector, one in the Law Centre for Northern Ireland and one in
the Children's Law Centre. The not-for-profit sector are very
exercised by this and are very keen to ensure that under the new
funding arrangements which will be available to the new Legal
Services Commission, the regulation imposed by the Law Society
on their own members will not preclude lawyers operating in the
not-for-profit sector more widely in the same way in which they
do with the Law Centre and the Children's Law Centre. That, I
think, is the position where we are at the moment.
56. Thank you very much indeed. I have a couple
of other supplementaries which flow out of the questions we have
already been asking you, and then I have one litmus-paper question
which you will be expecting me to ask at the end. If I may go
back to the exchanges with Mr McGradyand I am sorry that
that was some time agowhen you were talking about the Funding
Code, did your comment on the Funding Code mean that it will not
be introduced until some time after the Commission has been set
(Lord Bach) No, it was not intended to imply that.
No, the Funding Code, as I understand itand I shall be
corrected if I am wrongwill be set up in good time for
when the Legal Services Commission starts operations.
57. In order that I do not appear opaque, let
me say what prompted the question. There seemed to be an implication
that the Commission would itself commission research into what
might go into the Code, and it was that that made us think that
in fact the Commission might be coming before the Code.
(Lord Bach) Yes, of course. There will
of course be a shadow Commission, but, as I have already said,
our present plans are that that should be quite close to when
the Commission begins. I think the first Funding Code may well
be set up in time for when the Legal Services Commission starts
work, but we are absolutely ready to amend the Funding Code if
research shows that it is not appropriate in Northern Ireland
in that way.
58. I am very grateful for that clarification.
The other supplementary I was going to ask was that the Government
mentions developing a range of alternative funding arrangements
for civil cases seeking financial damages. Can I ask in that context,
what about cases that do not relate to seeking damages?
(Lord Bach) Some of those may be appropriate under
the Funding Code for legal aid: others may not. For example, if
I may use the England and Wales analogy, neighbours disputes have
been taken out, effectively, of legal aid in England and Wales.
We would have to think long and hard, I think, before keeping
them in in Northern Ireland, and some other way would have to
be found of financing such cases. I am looking at Mr Hunter to
make sure that that answer is right.
59. I think Mr Hunter had registered that he
was being looked at.
(Lord Bach) Thank you, Chairman, you saw better than
(Mr Alan Hunter) I am not absolutely certain of the
full extent of the Funding Code in England, but perhaps we can
confirm whether that particular point is completely accurate.
I simply do not know at this stage, but yes, some of the non-financial
damages cases will obviously continue to be funded through the
Funding Code and so on, but I think also, as you have referred
to already, a lot of the issues will be dealt with perhaps in
the future through additional insurances and wider use of the
insurance that people already have.
8 See Ev. p. 25. Back
See Ev. p. 24, 26 Back