1. The Government welcomes the Fourth Report
of Session 2000/2001 of the Northern Ireland Affairs Committee,
into the reform of the provision of publicly funded legal services
in Northern Ireland.
2. The Government is committed to the provision
of high quality publicly funded legal services in Northern Ireland.
The service must be tailored to meet the distinctive legal culture
in the jurisdiction. The Government has clearly signalled our
intention to ensure that funding for these services will be targeted
to the most deserving cases, consistent with overall expenditure
commitments, and that publicly funded legal services will be delivered
through a modernised administration. The Government is pleased
to note the broad agreement among consultees in support of the
establishment of a Legal Services Commission to administer legal
3. Existing legal aid mechanisms in Northern
Ireland are focused primarily, if not exclusively, on funding
legal services provided by lawyers in the context of court actions.
The Government is conscious that these services do not always
address all the important life experiences in respect of which
individuals require advice and someone to speak for them. The
Government recognises also the valuable and important work undertaken
by voluntary organisations in the provision of advice and representation
in the areas in which they specialise. An important example of
this is the area of advice on welfare benefits which attract little
funding from legal aid. The Government is determined to commence
targeting scarce public resources on important legal services
which individuals require in a way which makes maximum use of
the funds available.
4. Work is progressing towards the publication
of a proposal for a Legal Aid Order in Council, the legislative
vehicle which will give effect to the Government's
reforms. It is now anticipated that the proposal for the Order
in Council will be published in Spring 2002, and not in
Autumn 2001 as stated at the time of the oral hearing. It is also
anticipated that the draft Order will be laid before Parliament
in the Winter of 2002 leading to the establishment of the Legal
Services Commission in the Spring of 2003. This still represents
an extremely tight consultation and legislative timetable.
5. Work has commenced prior to the establishment
of a number of working groups to consider specific aspects of
the reform programme, namely: the remuneration provided for the
provision of publicly funded legal services; the establishment
of quality mechanisms; and viability of alternative funding arrangements
for financial damages claims. In this context the Government notes
that several consultees recognised the importance of establishing
benchmarks against which the quality of legal services provided
at public expense can be assessed.
6. In addition, the Government announced, on
27 March 2001, the draft criteria which the Lord Chancellor proposes
to apply to applications for funding from an extra-statutory ex
gratia Scheme established to provide funding for representation
at exceptional inquests. This scheme and the proposed criteria
have generated substantial interest by way of applications for
funding and views from consultees on the proposed criteria. The
Government will seek at the earliest opportunity a statutory power
to grant legal aid in exceptional cases, which would not otherwise
attract legal aid including but not limited to inquests.
7. The Government's
response to the issues highlighted in the Committee's
conclusions and recommendations are set out below.
(a) The Committee looks forward to seeing
a copy of the Report of the Lord Chancellor's
Legal Aid Advisory Committee for Northern Ireland to the Court
Service on the case for a Contingency Legal Aid Fund in Northern
Ireland, which we understand is expected to be produced at the
end of June 2001. (Para 25 & 44)
8. The Government is committed to developing
alternative methods to enable money damages claims to be pursued
outside the legal aid fund. In this context the Government appreciates
the willingness of the Lord Chancellor's
Legal Aid Advisory Committee to undertake a detailed study into
the financial viability of establishing a Contingency Legal Aid
Fund in Northern Ireland and reviewing the feasibility of introducing
Conditional Fee Agreements in Northern Ireland.
9. The Legal Aid Advisory Committee's
final report was received by the Government on 31 July 2001. A
copy of the Committee's
report has been placed in the Library of both Houses of Parliament.
10. The Legal Aid Advisory Committee's
Report includes a detailed feasibility study on the establishment
of a Contingency Legal Aid Fund. The Government will wish to give
these matters detailed consideration before coming to a firm view
on the way forward.
11. The Government however emphasises the need
to open up access to justice for all those people in income brackets
who at present are sometimes unable to resolve their disputes
because they cannot afford to.
(b) Given that the Government clearly envisages
that publicly funded legal aid will pay a proportionately smaller
part in the future in the funding of legal actions, we welcome
the proposed establishment of a Working Group to look into the
establishment of a financially viable and attractive legal insurance
based solutions to provide an alternative to private or public
funding of litigation for cases seeking financial damages. The
Committee notes that this will include further examination for
the use of Conditional Fee Arrangements or a Contingency Legal
Aid Fund. The Committee also notes the Government's
assurance that this is not intended to lead to a reduction in
legal aid spending but will allow the Government to target spending
on cases which cannot be run without subsidy. (Para 27 & 44)
12. The Government notes the Committee's
endorsement of the serious commitment of the Government to work
in consultation and partnership through establishing a Working
Group to look into these important issues. The establishment of
the Working Group is an indication of the Government's
commitment to developing appropriate solutions to address the
problems which exist in the provision of publicly funded legal
services in Northern Ireland.
13. The Government is satisfied that certain
classes of action, particularly those involving claims for money
damages, do not always necessarily require funding from the legal
aid fund as other mechanisms could support such actions. The Government
is grateful for the detailed study undertaken by the Lord Chancellor's
Legal Aid Advisory Committee into these matters. The Government
will give careful consideration to the analysis in support of
the recommendations made in the Advisory Committee's
14. The Legal Aid Advisory Committee's
report raises several important issues of principle and practice
which the Government will wish to explore further. The Government,
therefore, proposes to establish a Working Group to look at the
detailed feasibility study included in the Legal Aid Advisory
15. In particular the Government will wish to
consider whether a Contingency Legal Aid Fund will offer the following
(a) open up access to justice to individuals
whose means would either disqualify them from civil legal aid
or be so limited that they could not afford the contributions
required under the legal aid scheme;
(b) embrace a wide range of money damages cases
and offer a funding mechanism for classes of cases which do not
attract legal aid at present;
(c) include risk sharing between the solicitor
and barrister and their instructing client;
(d) ensuring appropriate costs protection to
successful defendants in receipt of assistance and successful
plaintiffs who finance their own action;
(e) avoid adverse selection by attracting a disproportionate
number of weaker cases;
(f) transparent administrative arrangements;
(g) guaranteeing no exposure to the public purse
and being based on private sector resources;
(h) meeting the requirements of competition law
16. The Government is determined to ensure that
public funds are providing the most appropriate services by high
quality providers. In this context the Government is determined
to ensure that public funds are made available to ensure that
basic rights and entitlements are safe-guarded. Clearly within
the existing legal aid structures in Northern Ireland the mechanisms
do not exist which would enable the Government to target resources
at those areas of greatest need.
17. The Government is determined to target resources
at those cases which are clearly a priority and to encourage other
funding arrangements which will release scarce public funds to
help a greater number of people.
18. This approach is consistent with the Government's
determination to ensure that public funds are directly targeted
to those in society with real needs to ensure that the right services
are available to help people at a time when they need legal help
to advise them and to help them to ensure that their rights are
(c) The Committee recommends that further
consideration is given, in the context of the development of the
proposals, as to how best to ensure that adequate provision is
available for supporting cases, not seeking financial damages.
(Para 28 & 44)
19. The present legal aid scheme in Northern
Ireland does not require different tests to be applied in consideration
of different categories of action to determine if civil legal
aid should be available. The Government intends to develop a new
mechanism, a Funding Code, which will prescribe appropriate merits
tests in respect of the discrete categories of action which will
be eligible for funding. The merits test applicable to each of
these categories of action would reflect the relative priority
attached by the Government to those types of actions.
20. Through the establishment of a Funding Code,
the Government will ensure that priority is given to funding meritorious
cases, including those which are not seeking money damages. This
proposal is consistent with policy in England and Wales when the
Lord Chancellor published the Community Legal Service Fund funding
priorities in February 2000. In his direction the Lord Chancellor
indicated that top priority should be given to:
(a) special Children Act proceedings; and
(b) civil proceedings where the client is at
real and immediate risk of loss of life or liberty.
Other priority areas which were identified are:
(c) help with social welfare issues;
(d) domestic violence proceedings;
(e) proceedings concerning the welfare of children;
(f) proceedings against public authorities alleging
serious wrong-doing, abuse of position or power or significant
breach of human rights.
21. The priorities which the Lord Chancellor
has established for England and Wales are not binding in the context
of delivering publicly funded legal services in Northern Ireland.
We would want to consult on those and take local considerations
into account. The priorities already set for England and Wales
do however provide an indication of the types of issues which
the Government is likely to see as being priority cases when developing
and consulting on priorities in Northern Ireland.
22. The Government's
intentions as to the management of the overall expenditure block
are set out at paragraphs 48-52 of the White Paper >The
The Government intends to establish the civil family and civil
non-family budgets by reference to the volume of cases within
the budget areas and the standard fees to be developed. To assist
the Government to establish priority cases within these controlled
budgets the Legal Services Commission will be tasked with undertaking
research into the areas of greatest need. The White Paper makes
clear that while it is envisaged that funds could be switched
between these two civil budgets, they will be ring-fenced from
the criminal budget which will continue to be demand-led.
(d) Lord Bach announced that the Funding Code
would be laid before Parliament and that the initial Code would
be subject to the affirmative resolution procedure. He envisaged
that amendments to it would be subject to the negative procedure.
However, given that experience and research may reveal a need
for quite significant modification, we consider that there should
be scope for modifications, too, to be subject to Parliamentary
approval. The Committee therefore commends to the Government,
as an appropriate model, the provision in the Public Processions
(Northern Ireland) Act 1998 applicable to revision of the Parade
Code of Conduct procedure rules and guidelines.
(Para 31 & 44)
23. The Government is committed to consulting
on the powers to establish and develop a Funding Code and will
consult on the range of cases, which will be funded through the
Funding Code, and the tests which will be applied to determine
whether individual cases receive funding.
24. The Government is grateful to the Committee
for drawing attention to a specific model which could be used
to establish and amend the Funding Code. This procedure will be
given detailed consideration in the context of the proposed Legal
Aid Order in Council.
25. There is one other issue upon which we should
elucidate i.e. the procedure for making and amending the Funding
Code. The observations of the witnesses at paragraphs 27 to 31
(pages 18-19) of the Minutes of Evidence reflect that this issue
remains to be resolved. If legal aid were categorised as a transferred
matter under the Northern Ireland Act 1998, then any new legal
aid primary legislation would be brought forward by way of an
Assembly Bill. In this scenario subordinate legislation could
be made by affirmative or negative resolution of the Assembly.
As legal aid is still a reserved matter, and the Order in Council
will be made by way of affirmative resolution at Westminster,
it would be unusual to have subordinate legislation under the
Order in Council also made by affirmative resolution.
26. The Government will give careful consideration
to the observations of the Committee and the model referred to,
and in particular the mechanism to bring forward and amend the
Funding Code will be the subject of consultation. In particular
we shall consult on the appropriate procedure to apply to subordinate
legislation made under an Order in Council.
(e) The Government intends that the Legal
Services Commission should initially be set up in shadow form
has been set aside to cover expenses and setting it up. Lord Bach
was not able to give us a comprehensive assessment of the financial
implications of the establishment of LSC. The Committee would
like an updated assessment to accompany the Government response
to this Report. (Para 40 & 44)
27. The Government has set aside ,500,000
for the establishment of the Legal Services Commission. It is
anticipated that the bulk of the expenditure against this sum
will be incurred for the years 2002/03. The breakdown of the allocation
of the projected costs against generic cost areas is set out in
the attached Annex A.
28. The Legal Aid Department, as part of an ongoing
programme of business improvement and development, is presently
29. The intention of the review is to make the
Legal Aid Department as effective and efficient as possible the
results of which will have to be taken into account before the
Legal Services Commission assumes responsibility. Recommendations
from the ongoing review will have financial implications for the
grant-in-aid requirement of the Legal Aid Department and for that
of the Legal Services Commission.
30. At the Committee hearing Lord Bach indicated
that the Legal Services Commission will be set up in shadow form.
had been set aside for the project.
31. A table providing a breakdown of the ,500,000
is attached (Annex A). These costings are preliminary and are
subject to any changes that may result from the review mentioned
at paragraph 29 and from any pressures that arise from issues
being addressed in the overall context of legal aid administration.
The measures being taken are intended to assist the Legal Aid
Department in moving to operate, as far as possible, as a NDPB.
32. During the shadow period of approximately
three months both the current Legal Aid Committee and the shadow
Legal Services Commission will be in receipt of remuneration and
33. The new Commission will have responsibility
for a number of areas of work not currently carried out by the
Legal Aid Department, particularly research and development of
34. There will also be a cost associated with
meeting the increasing demands for improved
35. As mentioned at paragraph 31 above the figures
attached are preliminary and based on the assumptions contained
in the foregoing. At this stage there are many variables that
are difficult to quantify. The ongoing review, IT enhancements
and negotiations with trade unions in relation to the transfer
of staff will all have a potential significant impact on the final
36. The projected costs represent the best estimate
at present, based on current rates and a number of critical assumptions.