Access to Justice (Northern Ireland)

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Rev. Martin Smyth: I welcome the point that the Minister is making, but what protection is available to my constituents who had a case brought against them by a person using legal aid who said that she had caught her hand in a letterbox delivering a freebie? Under the merit principle, my constituents—ordinary working people who own their own home—had to pay £800 up front for legal aid to defend themselves. The person who brought the case withdrew it, but my constituents were not refunded the £800.

Ms Winterton: Did the hon. Gentleman write to me about that case?

Rev. Martin Smyth: No, I took it up in other ways.

Ms Winterton: Perhaps the hon. Gentleman mentioned it to me in passing in the House. I am not sure of the details of the case, but I am happy to write to him if that would help. We have to accept the general principle that conditional fee agreements give access to justice that they did not previously have to many people who do not qualify for legal aid but do not have the private means to take a case forward.

The case involving the constituent of the hon. Member for Belfast, South (Rev. Martin Smyth) might be changed by the Legal Services Commission's assessment of which cases should be prioritised for legal aid. I do not know, because I am not sure of the details of that case. The proposed system would enable the commission to consider types of cases. Having considered local needs, talked to people about local priorities, consulted the professions and so on, it would be able to say, ''Yes, this is the type of case that requires public funds.'' The hon. Gentleman's constituents' case might be subject to a different kind of agreement. As I said, I am not clear on all the details and I shall be happy to respond in writing if necessary.

Mr. Nigel Dodds (Belfast, North): The Minister talked about conditional fee agreements improving access to justice for certain categories of plaintiffs. I

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am sure that she is aware of the Lord Chancellor's Legal Aid Advisory Committee report on the matter, which stated:

    ''To the extent that CFAs in England and Wales have excluded weak cases available studies indicate that they exclude all but the virtually certain cases.''

What is the Minister's opinion of the committee's view? Some anecdotal and other evidence indicates that the agreements have not worked as well in England and Wales as people thought they would.

Ms Winterton: The evidence is two-fold. The principle of providing for people who would not otherwise be able to access justice is important. Certainly the number of people who have been able to pursue cases and get justice, where they previously would not have been able to, has increased. The problem could be tackled from the other end as well. We have to judge whether we can free up money—we believe that in Northern Ireland the amount would be about £1.5 million—from the civil legal aid budget and put it into other places.

We have noted the report of the Lord Chancellor's Legal Aid Advisory Committee and have in fact commissioned further work on the viability of a privately funded contingency legal aid fund in Northern Ireland. However, we feel that conditional fee agreements can certainly provide a fairer way for people to access justice. Obviously, in some situations, agreements can be reached through insurance companies, for instance, to deal with the point that the hon. Gentleman made about the very high rate of success that might be required. We are weighing very carefully the various views on the proposals for conditional fee agreements and CLAFs.

The establishment of the commission will effect a transfer of statutory responsibility for the administration of publicly funded legal services from the Law Society to the commission. That is consistent with the approach taken in England and Wales at the end of the 1980s. The establishment of the commission has been widely welcomed and is a prerequisite to facilitating the research, consultation, analysis and pilot schemes that will be required to implement the reforms that we are suggesting in legislation. The proposed legislation sets the future reform of legal aid in the context of a high-quality, value-for-money service that will be implemented not wholesale but on a gradual and developing basis.

The draft order clearly sets out the knowledge and experience that will be required from members of the commission, including knowledge of the provision of civil legal services or criminal defence services, the work of the courts, consumer affairs, social conditions and management. Appointments will be by open competition. We hope that the members of the commission will bring a breadth of experience and knowledge to the whole spectrum of the commission's responsibilities, including judgments on how to get the best value for money and on how to ensure the quality of the services that will be provided.

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David Burnside: Will the Minister give a commitment that competition for the membership of the commission will be truly open, fair and based on a meritocracy, and not reflective of anything else in Northern Ireland society?

Ms Winterton: A great deal of effort is being made to ensure that we find the very best people to undertake this important work, and we want the process to be open, fair and transparent. It is important that the commission is able to have an independent view of how best to provide legal services to the public in Northern Ireland at public expense.

The commission will be independent, but it will be subject to policy directions given by the Lord Chancellor. However, it will be empowered to give the Lord Chancellor any advice that it may consider appropriate on matters relating to any of its functions. The Lord Chancellor will, as he must, retain overall responsibility for policy, but he will be able to give the commission guidance and direction. That reflects the need for the Lord Chancellor to be in a position to ensure that the priorities for, and the administration of, publicly funded legal services are consistent with the overall objectives of the democratically elected Government of the day.

The legislation will require the commission to ensure that its advice to the Lord Chancellor and any decisions that it makes are properly informed.

Mr. Dodds: A review of public administration was under way at the time of the suspension of devolved institutions in Northern Ireland and, as I understand it, is continuing. Given that another non-departmental public body will be set up, what are the likely administration costs of that body? Are any figures available?

Ms Winterton: In the first year, we anticipate that the start-up costs will be approximately £700,000. Overall, we believe that the system will lead to greater cost-effectiveness because of the number of people who will benefit from the establishment of the commission and the reforms that we are introducing.

The proposed legislation will lead to research-based decision making, and the commission will be required to conduct research into the profile of legal need throughout the jurisdiction. That is a very important principle in what we are trying to achieve, and it is at the heart of our policy. Targeting social need is a stated priority, and without the legislation it would be difficult to reform legal aid in such a way as to meet those targets of social need. There are currently important areas of advice and assistance, including social welfare issues, which do not always get the best out of publicly funded legal services. We should like to redirect funds towards those important services that can make a significant difference to the circumstances of many individuals in Northern Ireland. The commission could work with other agencies to develop a co-ordinated approach to funding that vital work. Progress on such an important initiative would be dependent on releasing funds spent in other areas by publicly funded legal services.

I am sure that hon. Members will have noticed that many of the not-for-profit organisations that

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responded to the proposals welcomed the fact that the commission will be able to ensure that access to vital advice on housing, welfare benefits and other areas is opened up to the people of Northern Ireland.

That may mean using funds that have previously been directed to other areas, which brings me to the second strand of the reform proposals: taking control of the cost of providing publicly funded legal services. Hon. Members know that expenditure has risen from £12.19 million in 1991 to £41.53 million in 2001–02, which is a real-terms increase of 149 per cent. Given the amount of public money devoted to publicly funded legal services, it is vital that it is used to secure legal services for the most meritorious actions and for actions that are of most importance to the individual citizen and the community. I am thinking of cases concerning children and the life and liberty of the applicant.

Resources are finite and it is not feasible for publicly funded legal services to continue to increase on a purely demand-led basis. To address that, the proposed legislation will introduce three important measures. The first is the establishment of a controlled budget for civil legal services, which will be informed by an analysis of the need for, and the availability of, legal services. That proposal, which is established practice in England and Wales, will bring publicly funded legal services into line with other areas of public expenditure that have finite budgets.

The second measure will complement a controlled civil legal services budget by establishing a funding code, which will contain the criteria to be used in determining whether civil legal services should be provided in a particular place. Under the proposal, the Lord Chancellor will set the Government's priorities for civil legal services. The priorities set for Northern Ireland will reflect local needs, and may closely resemble priorities set for England and Wales: the real and immediate risk of loss of life or liberty; social welfare issues including debt, employment rights, benefit entitlement and housing; domestic violence; welfare of children; and proceedings against public authorities alleging serious wrongdoing, abuse of position or power, or significant breach of human rights.

The proposed funding code will introduce flexibility in assessing applications for funding by enabling different criteria to be applied to different categories of case according to their priority. The funding code will therefore play a vital role in ensuring that priority cases receive funding and in managing the controlled budget for civil legal services.

The third measure is the development of new remuneration provisions that will enable all-inclusive standard fees to be developed for all aspects of publicly funded legal services. The proposed legislation makes provision for exceptional cases to be remunerated outside the proposed standard fee structure, which uses all-inclusive fees for all aspects of a case or piece of advice. It is envisaged that the vast majority of legal issues brought at public expense will be remunerated by reference to standard fees. There will be provision for funding of exceptional cases, but exceptional will mean exceptional.

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That approach will enable the Government to obtain a much clearer view of the funds required for publicly funded legal services in Northern Ireland on a year-on-year basis. It will also give practitioners certainty about the amounts that they receive in payment for their services, and it will speed up the payment process by simplifying the assessment procedures. The proposed remuneration provisions will be developed in a structured manner, commencing with remuneration for criminal defence services.

The final strand of the proposed legislation which I draw to the Committee's attention is the proposal to enable the Lord Chancellor to establish a registration scheme and code of practice. The code will set out defined levels of service to the client that those providing legal services at public expense will be required to meet. The proposal will bring to bear on services provided as part of publicly funded legal services the scrutiny applied in many areas funded from the public purse.

Under the proposal, all firms, bodies and individuals who wish to provide publicly funded legal services will have to be registered and comply with the code of practice. We will audit compliance to ensure that the public get the standard of service to which they are entitled. Only firms and individuals who satisfy the quality standards will be entitled to provide publicly funded legal services.

The proposed legislation will also enable the Lord Chancellor to make regulations in respect of codes of practice for different types of work. The proposed system will include compliance monitoring, which could result in sanctions being imposed should non-compliance be found. We will be interested to hear hon. Members' views on how a code of practice would work. For example, what sanctions and incentives might be built in to the running of the registration scheme to encourage high standards? It is important that we build quality into the services being offered.

I am sure that hon. Members will be interested to know our thinking on the important subject of implementation—a matter that was raised previously. Throughout our consultation, we were clear that it would be neither appropriate nor desirable to contemplate implementing all the proposed reforms at the same time. We consistently stated that the Government's immediate priority would be the establishment of the Legal Services Commission. We strongly believe that that is the right step and we are pleased that we have had agreement in principle from our consultees on that matter. It is envisaged, however, that the reform of civil and criminal legal services will be taken forward when the commission is established and is ready to engage in the reform process. The commission is key and the legislation needs to set out the framework within which the commission will operate.

We are committed to consultation and that commitment is undiminished. The commission must play a pivotal role in the localised working out of the detailed policies of reform for publicly funded legal services. Many of the positions set out in the proposed legislation—including the funding code and the registration scheme regulations—can begin to be

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developed with the commission, alongside detailed research, analysis, consultation and pilot schemes. To develop those policies without the involvement of the commission would be wrong in principle and counterproductive in practice.

The implementation plan that I will lay before Parliament with the draft order will ensure that the commission is at the heart of the development of legal services and criminal defence services. That is consistent with our ongoing commitment to engage all interested parties to ensure that the reforms deliver the objectives that we have set out. Getting the process right and delivering these reforms will be of great benefit to the citizens of Northern Ireland, to taxpayers and to society. I commend the order to the Committee.

 
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Prepared 24 October 2002