Select Committee on Northern Ireland Affairs Appendices to the Minutes of Evidence


Memoranda submitted by the General Council of the Bar of Northern Ireland



  The Way Ahead is the most recent of a number of papers provided by the Court Service and the Government in relation to the future of the administration and provision of Legal Aid in Northern Ireland.

  The Bar of Northern Ireland has published two papers in response to the Government process of review. We refer to each of those papers and still reply on them.

  The Way Ahead was published some time ago but the Bar have been requested by the Northern Ireland Affairs Committee, by letter dated 23 January 2001, to make a written submission to the Committee's inquiry on the paper not later than Friday 23 February 2001.

  This paper deals only with the question of changes in relation to civil litigation. A separate paper will be provided in relation to changes in respect of criminal legal aid.


  Again the Bar repeats that, subject to some variations in emphasis, the Bar accepts the general objectives of the Government as set out in paragraph 2.4 of the consultation papers Public Benefit and the Public Purse.

  We also acknowledge that Mr Lock accepts in his foreword to the paper that it was correct to recognise that the legal services landscape in Northern Ireland has a number of distinctive features to that of England and Wales and that the Government's commitment is to recognition of the Northern Ireland legal services culture which is distinct from that in England. This is consistent with the Government's position in relation to Scotland where the administration of the legal aid scheme is different to that in England and Wales.

  It is right to remind ourselves that the cost of civil legal aid in Northern Ireland has always been less than that in England and Wales in all respects. The overall amount has been much smaller and the cost per capita or per case is much smaller. We did set out some of these figures in our previous paper.

  Therefore "the mischief" which the Government is proposing to deal with may well be very different in Northern Ireland.

  We have one general point of emphasis which we wish to make. We have already indicated that we are in favour of any improvements in the system of administration of legal aid. We have already accepted that it is right that the Government should desire the best service for the public and that the public would be properly catered for in a system of legal aid. We have accepted that there should be proper monitoring of costs and there should be properly qualified lawyers who act or practice in a system of legal aid. But we also say that cost cannot be the only criterion. We acknowledge that the Government wish to reduce the cost to the public purse and we accept that that is their decision. But we suggest that the emphasis should not be just on cost but must be on service. We repeat the views that we expressed in our previous paper. "We are sure that no revolutionary changes will be imposed on Northern Ireland unless there is some good reason for imposing the same and unless there is reasonable certainty that the changes will not have an unfair effect on the Northern Ireland public, or the administration of justice. The public should have a right to resort to litigation and to go to court. No one should be denied justice because of lack of funds. The aid given should be comprehensive and adequate to cover all costs reasonably incurred. Representation should be by a properly qualified lawyer when such assistance is deemed necessary.

  As far as possible a person should be free to choose his lawyer who should then be paid for his or her work. These are the principles embodied in the CCBE resolution of the Hague of 25 October 1991 and they represent the views of the Committee of Ministers expressed in resolution (78)8 of the European Community."


  We accept the appointment of a new independent administrative body to administer all aspects of publicly funded legal services in Northern Ireland. We accept that this will be an executive non-departmental public body and will be known as the Legal Services Commission of Northern Ireland.

  Subject to some variations in emphasis and approach we accept the thrust of chapter 4 of the paper The Way Ahead in relation to the powers of the LSC.

  We repeat our views that we totally disagree with the proposal set out in paragraphs 30 and 46 of The Way Ahead in relation to the system of appeals. What is described as a system of appeal is not such. It is a system of review. We believe that applicants should be entitled to an appeal against refusals and not a review. We do not agree that the test on appeal should be whether or not the original decision made was reasonable in the circumstances taking account of all available evidence at that stage. The test of an appeal should be that it is fair. It should accord with proper principles of natural justice. We do not accept that it can be right that if there is clear evidence justifying the provision of legal aid it cannot be provided on appeal.

  We also do not agree that appeals which are allowed would simply be returned to the LSC for reconsideration. The appeals body should be a body which has a legally experienced practitioner sitting on it and the appeal body should be able to make a decision as to whether to grant or refuse the appeal. We do not agree that the overall decision in effect would be simply made by an administrative body with no "real control" over that body in practice. We do not agree that because the LSC is responsible for providing resources that it can properly take into account a fairer or more objective standard of looking not just at its financial budget but also at the fairness of the case from the point of view of the applicant. This in effect is a partly legal decision and it should be decided on proper legal grounds and not just financial grounds.


  We accept that legal services bought with taxpayers' money should be demonstrably of a consistently high quality.

  We should say in passing that we have not seen any evidence that the quality of service in Northern Ireland in this field has been poor. But no system is perfect and we agree that there can always be improvement.

  So we accept that all legal service providers wishing to offer legal services at public expense should be required to register with the Legal Services Commission. We accept that there should be a code of practice which will establish standards to be satisfied by the provider. We accept that the providers registered with the Commission should be required to comply both corporately and individually with the code of practice.

  We accept that there has to be monitoring by the Legal Services Commission.

  We do not think that the test of ability should be based on whether cases are won or lost. We wait to see the terms of the proposed code of practice. We note that a working group is to be established to consider the quality standards to be introduced. We note that much of the monitoring will relate to accessing solicitors' offices and auditing and we acknowledge that.

  We see the reference to the use of salaried lawyers in paragraph 37 of the Government paper. Insofar as the Bar of Northern Ireland is concerned, we stand by the view that insofar as litigation is concerned the public still need to retain the right to have independent counsel. We still consider that through our history to the present date there is a need for an independent and fearless Bar giving service to all sides of the community and to plaintiffs and defendants alike.


  1.  We have already expressed our views on the suggested introduction of Conditional Fee Agreements (CFAs). We, with others, did suggest that the establishment of a contingency Legal Aid Fund (CLAF) should be considered. We are co-operating with the Lord Chancellor's Legal Aid Advisory Committee in its preparation of a report on this matter. We have already attended before that Committee and are proposing to put a paper before it.

  2.  We have already expressed our views on the introduction of funding for alternative dispute resolution (ADR) mechanisms. We have already indicated that we are not against that. What we have also expressed are cautionary notes about the likely success of such mechanisms and the danger of simply moving funding from legal aid to funding for ADRs with no great benefit to the public.

  3.  We do not propose to rehearse our earlier papers in relation to what aspects of legal aid assistance should be retained. We have already highlighted that in relation to a number of personal injury litigation claims, we cannot see how alternative solutions are viable. We have referred to professional negligence cases, medical negligence cases, litigation against organs of the State, representation of defendants, housing claims, claims for judicial review, and matrimonial claims.

  We will discuss below the issue of a statutory funding code but at the moment we still see that the preferable test for granting legal aid should be based on a financial and merits test.

  We take issue with the sentence in paragraph 27 which implies that this is not a rational way of spending public money. We believe that it is. We are not against any tightening of the means test to avoid abuse. We are not against tightening of a merits test if it is considered that the present test is too loose, eg, see one possible draft test in paragraph 14.5 of the submission by the Lord Chancellor's Legal Aid Advisory Committee. But we again say that there is no evidence from research that there has been excessive abuse of the granting of legal aid in the past and we note the general findings and comments of the Legal Aid Advisory Committee in its overall paragraph 14 of its submission.


  1.  We have already accepted the Government's desire and need to monitor and control expenditure.

  2.  We have already accepted that the LSC should be the body to carry out this exercise.

  3.  But we also repeat our views that we have seen no clear evidence of a mischief or abuse in relation to civil fees. We have quite a tight system of checking on fees in Northern Ireland.

    (a)  In the County Court (the equivalent of the English fast track) we have set scales of fees. These are prepared by the County Courts Committee composed of judges, civil servants and practitioners. We have not seen these challenged as small. In fact the profession has been saying that they are very low in comparison with England and need variation.

    (b)  We have a guidance scale or "going rate" scale in the High Court suggested by the Bar Council. (I am referring to Bar fees only). The Taxing Master has accepted these. The Civil Justice Reform Group under the chairmanship of Lord Justice Campbell in its report has noted these fees without criticism at 9.41 et seq. of its report.

    (c)  The Taxing Master is an independent officer of the High Court who has been taxing fees for many years.

  We are not against some guidance rate with an attempt to have standard fees. We are not clear yet what "a best value" approach will mean. We do not see a reason for suggesting that existing fees should be reduced. If the public are to receive a fair service they are entitled to have fair legal representation and legal representatives to be attracted to the scheme should be fairly paid.

  4.  However, we will wait to see what is suggested in the funding code. We do not fully understand the criteria which will be set out in this code at this stage. We note in paragraph 46 that the LSC will draw up the draft code "taking account of directions issued by the Lord Chancellor of the Government's priorities (and including the availability of sources criterion)". We admit that we are wary of this. We do not accept that there should be a capping of budget at all. We believe that there is no reason for capping of budget having regard to the history of the cost of legal aid in Northern Ireland to date. We accept there should be ringfencing between the civil budget and the criminal budget. It is not for us to enter into the political debate as to how money should be spent between education, medicine and legal assistance etc. But we emphasize that the present personal injury civil budget has not had a high net cost and the costing to date per case has not been excessive. We have already given in our previous papers average costs. Lord Justice Campbell's Reform Group noted the level of expenditure per head of population in Northern Ireland at £7 and not 9p as compared to £16 and not 2p in England and Wales and the average cost of civil Legal Aid for a claim in Northern Ireland is £929 as compared to £2,684 in England and Wales in 1996-97. We come back to our theme that whereas there must be checking and monitoring that capping can be unfair to the public generally. So we accept tightening up but not in terms as suggested in The Way Ahead. But we shall wait and see what the funding code sets out and will consider it and discuss it in due course.

  5.  We have already accepted that there should be some attempt at a going rate. We note the paper suggests that there can be allowance for exceptional cases but paragraph 64 implies that to come outside the standard fee you have to have a really, really exceptional case. The words used are "truly exceptional". We do not yet endorse this approach. We would like to see what words would be used in due course. We do not agree that there will not be cases which should come outside the going rate without having to be "truly exceptional". If there are very difficult points of law in a case, or if there are very unusual or difficult facts, or if the case is a test case, or if the case lasts a much longer time than the normal then we consider that these are the type of situations where a standard fee would not be sufficient. We would not like to have an argument where someone agreed that they are well above the standard case but they are still not "truly exceptional". To date the Taxing Master has been the person who has made judgments as to when a case should go above the standard rate or not. In his field there is a reasonably well developed body of law giving guidance on these subjects. Each case can turn on its own facts and on the work involved. We still believe that very narrow lines of division between standard fees and exceptional fees would not necessarily meet the justice of costing in many cases. We do not agree that a test based on capping or "resources available" can be fair to the practitioners or to the public.

  We also consider that it will not always be possible to assess at the outset of the case whether the case is a high cost case.

  We agree that the solicitor should apply at the earliest opportunity to the LSC setting out when a case is likely to be high cost or not.

  But we believe that this is something which can be covered by the LSC in its monitoring of the cases. We have already accepted that there is an ongoing duty to provide the LSC with all information that is relevant to the classification and progress of a case and decisions should not have to be made at the outset in relation to this aspect of costing.

  6.  We refer to paragraph 55 of the report. We are not entirely clear how standard fees will be measured by "the general level of competence of legal representatives undertaking the work". If the legal representative is properly registered and fulfils the code of practice then we are not yet clear why one representative should receive more funds than another. We believe that the test of a fee should be an objective one as to what is a fair and reasonable fee having regard to the issues in the case, the difficulties in the case and the work to be done.


  1.  The introduction of the LSC to administer all aspects of public funded legal services in Northern Ireland is accepted.

  2.  We accept that the introduction of that body will modernise the administration of the Service.

  3.  We accept that we need registration of persons applying the legal aid system and a code of practice.

  4.  We accept that the LSC can review the whole issue of who receives legal aid and on what grounds they receive legal aid, and monitors the progress of legal aid cases.

  5.  We accept that the Government is drawing up a draft funding code and its aim is to have some kind of standard fees. We are not against this. We have certain reservations as to how this will be applied and wish to reserve our discussion on that.

  6.  We believe that the ringfencing between civil legal aid and criminal legal aid will highlight that the cost of civil legal aid in Northern Ireland is not excessive and is consistent with the service that is necessary and that is given.

  7.  We are in agreement with the principle that the Government should have a going rate of fees for legal aid work. We want to see the fine tuning of this. We are not persuaded that capping is necessary or that the test of resources should be the real test of what should be the going rate fees.

  8.  We await any proposals from the LSC in relation to pilot schemes, a draft funding code, or other schemes which they are to carry out under paragraph 46 of the Government paper.



  This paper deals only with the question of changes in respect of Criminal Legal Aid proposed in the Way Ahead, a paper published some time ago. This is the response of the Northern Ireland Bar to a request by the Northern Ireland Affairs Committee by letter dated 23 January 2001.


  The Bar was pleased to note the Government's continued commitment to fairness within the criminal justice system, in particular that suspects and defendants could state their case on an equal footing with the prosecution and that Defendants could have confidence in and are assured an effective participation in the process (paragraphs 12.1(d) and (e) of the consultation paper headed Public Benefit and the Public Purse. The Bar also noted the Government's commitment to honouring statutory and international obligations in relation to the provision of criminal defence services (paragraph 12.2). The Bar affirms its commitment to those aims which are consistent with providing a quality legal service which is value for money. It is the strong contention of the Northern Ireland Bar that as far as criminal justice is concerned, the existing criminal legal aid arrangements achieve those aims.

  The Bar further wishes it to be made known to members of the Northern Ireland Affairs Committee that while many things are complained about in Northern Ireland, there has never been any substantial public complaint about the quality of legal services provided in the criminal justice system and indeed the quality of legal services provided in the criminal justice system and indeed this jurisdiction has been well served through the past troublesome and difficult 30 odd years with a notable absence of public outcry about any alleged miscarriages of justice. It is notable that in the Government's own comprehensive review of the criminal justice system in Northern Ireland published in March 2000, the Review body emphasised that accessibility to justice regardless of ability to pay in the criminal justice system is an important principle and if the right to legal assistance is to be effective, it must be provided free to those who do not have sufficient means to pay for it (paragraph 3.58, page 44). Further, the Review noted the aforesaid consultation document and emphasised that the provision of publicly funded criminal legal services is a necessary function of a free and democratic society governed under the rule of law and is a means of ensuring fairness and confidence in the system and further referred to article 3(3)(c) of the European Convention on Human Rights recognising the right of free legal aid provided it is in the interests of justice for it to be granted. The Review further emphasised the principle of legal aid in that suspects and defendants can state their case on an equal footing with the prosecution and reminded the Government that the European Court has developed this principle to require that the defence have equal access to material information and expert assistance before and at the trial. In particular the Review goes on to state that it has been established that the defendant must be able to secure attendance and examination of experts on his or her behalf under the same conditions as apply to experts against him or her and that that means that legal aid provision must enable the defence to draw upon experts of equal standing to those called for the prosecution (see paragraph 3.59). The Criminal Justice Review carried out widespread public consultation in respect of all aspects of its terms of reference and did not note any public concern about the quality of legal services to date despite the enormous difficulties and stresses upon the system and the lawyers operating within that system over the last 30 years.

  As far as criminal legal aid is concerned, the Northern Ireland Bar is of the firm view that the present arrangements provide a very high degree of accountability and transparency within a system that is now staffed by a highly efficient number of people operating a system that is almost entirely computerised. Accountability clearly exists within the system of supervision and certification operated under the auspices of the Appropriate Authority and further in terms of supervision and review by the Taxing Master and ultimately by the High Court. The Bar stresses its commitment to helping implement any administrative changes which would make this system more efficient and is of the firm view that Cm 4849 is a set of Government proposals which, as far as criminal legal aid is concerned, is a direct response to a rise in expenditure between 1990-91 and 1997-98. The Bar states firmly that such a rise is clearly attributable to a large number of factors including the fact that it is only since 1990-91 that criminal practitioners at the Northern Ireland Bar were in receipt of fees equivalent to their English and Welsh counterparts, thus explaining to some degree the sudden growth in expenditure. A large number of other matters imputed into this position, for example the extensive number of defence experts now engaged and further the much more complex matters involved in criminal trials over very recent years. The Bar of Northern Ireland believes that a study of the reasons for that rise should have been undertaken before radical changes were proposed for criminal legal aid in this jurisdiction and is of the view that there are so many vulnerabilities and contradictions in the Government's present proposals that the only conclusion that can be drawn is that said proposals are a thinly disguised cost cutting exercise which will ultimately impinge upon the quality of legal services available to defendants in Northern Ireland. The Government fails to recognise in its proposals the peculiarly difficult and at times life threatening situation that criminal defence lawyers are presented with on a regular basis in this jurisdiction, both over the last 30 years and for the foreseeable future, and if there is any dilution of the quality of the legal services provided as a result of these present proposals (which the Bar feels is the inevitable consequence of same) then it is the citizens of Northern Ireland who will ultimately suffer most. It is somewhat of an irony that while Northern Ireland has been the most difficult of the UK jurisdictions in which to practice over the last 30 years, that official figures show that criminal defence pro-rata have consistently reflected up to 50 per cent better value for money provided by the Northern Ireland practitioner. We would refer the Northern Ireland Committee to the history of the costs of Criminal Legal Aid in this jurisdiction at pages 3, 4, 5 and 6 of the Bar's Submission on Criminal Legal Aid to the Public Benefit and the Public Purse consultation paper released on 14 June 1999. However, the Bar has no objection to any proposed change of administration of the present system and will assist and co-operate with same in every possible way.


(i)  Forward

  In the Forward to the present proposals written and signed by David Lock, Parliamentary Secretary, Lord Chancellor's Department, he states that "Simply put the Government's stated intention is to modernise the administration and provision of publicly funded legal services in Northern Ireland by delivering local solutions to local problems".

  The Bar of Northern Ireland says that the present system introduced as recently as 1990-91 into this jurisdiction was transparently a local solution to a local problem accountable with a civilian input overseen at various stages and ultimately subject to certification by the Taxing Master and review by the High Court.

  Further, Mr Lock goes on to discuss the establishment of a new independent body to administer Legal Aid (The Legal Services Commission) and indicates that the Government is "determined to take effective control of the levels of public funding allocated to the provision of legal services and to ensure that the available funds are targeted on meeting the real needs of the most vulnerable in society".

  The Bar states that one of the most vulnerable persons in society is the person who has been indicted by the Government and is the subject of a serious criminal charge facing a prosecution system that has greater resources, more and better experts, more and better forensic evidence and more and better access to legal expertise on an international basis. If the expenditure from the public purse is "demand led" in the sense of being dependent upon the number of persons apprehended and the offences charged, it is also clearly "prosecution led" in the sense that the defence must prepare and have resources to match the resources which the prosecution chose to put in to any particular case. The Bar says that the present proposals with their emphasis on control of the levels of public funding allocated to the provision of legal services to the defence is quite inconsistent with the principle of equality of arms now enshrined and incorporated in domestic legislation.

  Mr Lock goes on to envisage in his Forward a service which is of a "quality" which is "independently monitored and of a consistently high standard".

  The Bar is of the view that as far as Criminal Legal Aid is concerned, the present system fully enshrines these aspirations.

  (i)  The Bar notes the Government proposal that Commissioners on the Legal Services Commission of Northern Ireland will be drawn from a "range of backgrounds including financial, business and legal services". Further, it appears that the proposal is that said Commission will have powers to establish panels of lawyers to be co-opted as sub-Committee members of the Commission though it doesn't appear that such co-option would be relevant to criminal legal aid.

  The Bar is of the view that such a Commission would have therefore little or no insight into the complexities of a criminal case, and in particular a serious one, and therefore would be ill-equipped to make the decisions that are expected of it in the Government proposals in this document.

  (ii)  It is notable that there is some considerable emphasis on cost control measures in this chapter. It is further notable that the Government proposes a range of all-inclusive standard fees after consultation with legal service providers but that ultimately said fees are to be set by the Legal Services Commission who as stated have little or no knowledge of criminal case work or case load. Their approach is required to adopt a "best value" approach and it is made abundantly clear that "existing fees will not necessarily be the starting point for fixing standard fees". It seems quite anomalous that what is paid to defence lawyers as reasonable remuneration for "work done" since 1990-91 is not necessarily now considered to be even a starting point. Further the Government proposals proposes that "mechanisms will be developed to allow cases to be certified as `exceptional'". Presumably it is intended that the Lord Chancellor will direct on this issue and at present there are absolutely no criteria set out. It is noted that this term changes to "truly exceptional" and to "complex" and to "high cost" as the report progresses indicating in the view of the Bar quite imprecise budget driven thinking on this issue.

  Finally within this chapter, it is envisaged that the Legal Services Commission will be empowered to establish a salaried lawyer structure which is in effect a public defender system with all its known failings in other jurisdictions.


  It is stated that all of the Committee were in favour of the responsibility for administration of Legal Aid being moved from the Law Society to an Legal Services Commission. This is not the case as far as the Bar is concerned.

  With respect to the proposed Legal Services Commission the Bar wonders how finance and business skills relate to the assessment of the value of the role of the criminal defence practitioner in his criminal cases in Northern Ireland.

  It is notable within this chapter that the Legal Services Commission is responsible for, amongst other matters, agreeing and monitoring "exceptional" cases which fall outside the standard fee regime against the established criteria. No established criteria are set out in this document and it is alarming to note that Commissioners with no legal expertise whatsoever are to be assigned this role. This is an alarming proposition and is almost certain to lead to considerable anomalies.


  On the one hand the Government proposes that the Criminal budget will be essentially demand led but then sets out various measures which are designed to establish clear budgetary control and are undoubtedly geared to cost cutting what the Government perceives to be an over-generous legal aid budget at present applicable in criminal cases. The Government's true intentions are reflected in the introduction of standard fees which are geared to amongst other things, the "availability of resources" and "public sector comparables". The Government clearly concedes that remuneration for criminal legal aid will not be guided by "other private rates" or "the income lawyers may reasonably expect to earn from other sources". The Northern Ireland Affairs Committee should understand that in fact the Government is clearly proposing not to pay the going rate that a lawyer might reasonably expect to receive from the private sector and a form of "capping" consistent with other professionals working within the public sector is to be applied along with a threat to initiate a salaried lawyer system (public defender). The fact is that the able barristers who are used to doing criminal defence work in this jurisdiction with all its associated sensitivities and enormous difficulties, if not risks, will no longer be available as the present remuneration described by this Government as "reasonable" will not be available under the standard fee system proposed. The Government concedes indeed in this chapter that the inevitable consequence of establishing standard fees is that they will not be the same as those which a private client would pay. While the Bar welcomes the Government's indication that it will develop the levels and structures of the standard fee models and in doing so would welcome the input of the profession to this process, guided of course by the clearly restrictive principles set out in the paper, it also goes on to say that the scale fee approach is demonstrably a Northern Ireland solution for a Northern Ireland problem.

  What the Bar asks is quite simply what is the problem? If the problem is the increased legal aid expenditure in recent years, the Bar would refer the Northern Ireland Affairs Committee to its previous submission to the Government on this issue (enclosed[15]) and would be quite happy to present oral evidence in detail on all the issues therein. It will only be in "exceptional" cases that standard fees will not be applicable and the Bar would wish the Northern Ireland Affairs Committee to know that an extremely crude, broad brush, ill thought out and ill refined approach is proposed for a perceived problem in Northern Ireland. The Bar is of the view no proper attempt to analyse the present position peculiar to Northern Ireland with all its inherent variables has been made by the Government and instead proposed an approach that will divest the vulnerable in the Northern Ireland Community of quality legal defence. The Government well knows that "value for money" means it will get what it pays for, and these proposals are abundantly clear that the Government intends to be utterly restrictive in its application of the criminal legal aid budget in the future. The emphasis of its report is clearly the controlling and budgeting of legal aid expenditure in the future at the expense of the inevitable consequence of dilution and loss of quality. Indeed, nowhere is this more highlighted than at paragraph 74 where it is stated that the proposal of the Government is that courts will not continue to have the power to decide on the number of counsel or advocates allowed, but that that this has now to be transferred to the Legal Services Commission with criteria set out by Lord Chancellor's directions. The Bar anticipates extremely restrictive criteria and reminds the Northern Ireland Affairs Committee once again that members of the Commission who have no legal experience whatsoever will be making decisions fundamental to the defence of the citizens of Northern Ireland unfortunate enough to be charged with a criminal charge and apparently not be accountable for same on any statutory basis.


  It is the strong view of the Bar that the Government proposals in respect of criminal legal aid would inevitably result in a substantial lowering of the quality of legal services provided and that, in the Northern Ireland context, this would result in a reduction in public confidence in the system which will have far reaching effects. The Bar is keen to ensure quality control consistent with its professional responsibilities not to allow intrusion of confidentiality.

  The Government provides no evidence whatsoever that the services at present being provided are not of the highest quality. There has been no complaint from an extremely critical population during the course of the Criminal Justice Review over a period of approximately two years of its life. The Appropriate Authority with the present system of review by the Taxing Master is highly accountable and the present system, we wish the Northern Ireland Affairs Committee to know, is working well. The Bar has committed itself to helping bring about any improvement which can be made in the present arrangements at all times.

  Further the Bar has committed itself to the Government's aim of getting value for money in the context of providing a quality legal service and urges that research be undertaken to establish a breakdown of criminal legal aid costs since 1990-91 wherein we are sure it can be shown to the Northern Ireland Affairs Committee that "value for money" has been provided by the Criminal Defence Bar in the context of the Northern Ireland defendant's right to a fair trial and "equality of arms" with the prosecution and to the high degree of satisfaction with criminal services which appears to exist in Northern Ireland. An independent and fearless Bar in Northern Ireland is the guarantee of quality and not some form of registration or code of practice. Again the Bar would be keen to address the Committee on this issue. Any monitoring of its cases by members of the Commission will not be acceptable to the Bar. The reasons are strikingly obvious.


  At paragraph 84 reference is made to "shortcomings inherent in the existing legal aid system in Northern Ireland". Since the Government has made no reference to "quality" then it is assumed that this is a reference to budgetary concerns and the Bar emphasises that the proposed changes are in the context that no complaints of quality have been presented to or by the Government in this paper and that "value for money" has always been provided as indicated by the most fundamental figure of all, namely the comparative "pro-rata" figure presented in annual Legal Aid Reviews carried out in the relevant UK jurisdictions.

  At paragraph 86 the Government eschews the importance of targeting public funds towards cases of greatest merit and yet the inevitable consequence of these proposals is that defendants in serious criminal cases are to be divested of quality legal service because financial cut backs and restrictions are undoubtedly to be applied to a criminal legal aid system which, if it is to properly represent the vulnerable of the community in terms of "equality of arms", then it is of necessity to be demand led in order to meet "prosecution led" publicly funded prosecutions not subject to the same analysis or restrictions. Ultimately the quality of the system will suffer and lead to inevitable miscarriages of justice in the future. As clearly emphasised at paragraph 88, a rigorous control of the cost of legal aid is to be applied. Most reprehensible and insulting to the Defence Bar in Northern Ireland is the reference at paragraph 90 (penultimate paragraph) by the Government of its commitment to "reform" of a system that we say is not broken and the implicit threat that if the good will of the profession is not available towards the proposals in its paper for case and cost control, then the Government will once again look at the prospect of having to invoke "the alternative of exclusive block contracting", retaining this threat on the Government's "default agenda" should agreement not be forthcoming on its scheme set out in its Decisions Paper. The Bar would like the Northern Ireland Affairs Committee to make of that implied threat what it will as an indication of exactly the mischief lying beneath within and indeed above all aspects of the Government's proposals for the future of legal aid in Northern Ireland as set out in Cm 4849.

22 February 2001

15   Not reported. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2001
Prepared 13 July 2001