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Select Committee on Northern Ireland Affairs Minutes of Evidence


Memorandum submitted by the Northern Ireland Court Service

INTRODUCTION

  1.  The Northern Ireland Court Service ("NICtS") is a Department of the Lord Chancellor established under the Judicature (Northern Ireland) Act 1978.

  2.  The Lord Chancellor is responsible for legal aid in Northern Ireland. Legal aid is a reserved matter under the Northern Ireland Act 1998 (Schedule 3 paragraph 15). Legal aid was transferred on 1 April 1982 from the Secretary of State to the Lord Chancellor under the Transfer of Functions (Legal Aid and Maintenance Orders) (Northern Ireland) Order 1982 [S.I. 1982 No. 159].

  3.  The Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (S.I. 1981/228 (N.I.8)) ("the 1981 Order") is the statutory basis for the provision of legal aid in Northern Ireland. It is similar to the Legal Aid Act 1974 which applied in England and Wales prior to the Legal Aid Act 1988 ("the 1988 Act") and the Access to Justice Act 1999.

  4.  There are a number of other participants in the context of legal aid in Northern Ireland. The relationships are set out in Appendix A.

  5.  The outturn figures associated with legal aid are given in the table below:

Actual Nett Spend

  
Grant in aid £m
Criminal £m
Civil £m
ABWOR £m
Green Form £m
Total £m
1994-95
1.92
9.59
4.38
1.29
4.67
21.85
1995-96
1.99
14.18
4.64
1.28
5.68
27.77
1996-97
2.03
14.33
5.70
1.47
4.60
28.13
1997-98
2.23
17.55
5.75
1.87
3.68
31.08
1998-99
1.58
15.93
6.47
1.45
6.24
32.67

LEGAL AID REVIEW

  6.  The Government announced a review into the provision and administration of legal aid in Northern Ireland on 19 February 1998. The announcement indicated that officials would:

    (a)  undertake a review into arrangements for the administration and provision of legal aid in Northern Ireland, bringing forward recommendations for change where necessary; and

    (b)  consider in the Northern Ireland context the proposed reforms to legal aid in England and Wales.

  7.  As a result of this review a Consultation Paper entitled "Public Benefit and the Public Purse" was published on 14 June 1999. The Consultation Paper included fundamental proposals to reform the legal aid system in Northern Ireland.

Objectives of the review

  8.  The Government's objectives, as set out in the Consultation Paper, are summarised as follows:

    (a)  ensuring appropriate funding arrangements are in place to secure access to the most appropriate means to resolve legal issues for citizens;

    (b)  targeting resources to those in greatest need;

    (c)  ensuring that the overall cost of legal aid is affordable and controllable;

    (d)  securing value for money from quality legal services; and

    (e)  establishing the most effective and efficient administrative structure to deliver publicly funded legal services.

Proposals

  9.  The key proposals in the Consultation Paper are to:

    (a)  establish a new Administrative Body, the Northern Ireland Legal Services Commission, which might ultimately take responsibility for all public expenditure used to buy legal services, whether civil matters, family matters or criminal matters;

    (b)  establish capped budgets for legal aid (other than in criminal matters). The funds available would be targeted at the highest priority matters. Cases falling within priority categories would attract funding based on the significance of the issue to the individual bringing the case; its prospects of success; the availability of alternative financing; and the public interest;

    (c)  secure the services of quality providers at best value for money prices through a system of exclusive contracting or standard fees supported by a quality standards mechanism; and

    (d)  ensure the most appropriate and cost effective solutions are available to the public.

Responses to Consultation Paper

  10.  The consultation period on the Paper ended on 29 October 1999. Ministers have considered the responses and are finalising decisions on the reforms. Primary legislation (a Northern Ireland Legal Aid Order in Council made under the Northern Ireland Act 1998) will be required to bring forward the substantive reforms.

CURRENT MANAGEMENT ARRANGEMENTS FOR LEGAL AID

  11.  In Northern Ireland statutory responsibility for administering civil legal aid is vested in the Law Society of Northern Ireland and the function is exercised through its Legal Aid Committee and Legal Aid Department. In addition the Law Society administers the criminal legal aid scheme on behalf of the NICtS (apart from appeals in criminal matters to the Court of Appeal and House of Lords where legal aid payments are made by the NICtS on foot of taxation). This is different to the position in England and Wales where statutory responsibility for civil legal aid transferred from the Law Society to a Legal Aid Board by virtue of the 1988 Act. Criminal legal aid in England and Wales is administered by a mixture of court officials (Crown Court proceedings) and staff in the Legal Aid Board (Magistrates' Court proceedings).

  12.  In December 1997 the arrangements for administering legal aid in Northern Ireland were placed on a more regulated footing, through the introduction of Management Statements and Financial Memorandums (in relation to both civil and criminal legal aid) agreed between the Law Society and the NICtS. This initiative had been taken to:

    (a)  introduce arrangements to require the Legal Aid Department to operate more in line as a Non-Departmental Public Body (although in fact a Department of the Law Society in Northern Ireland);

    (b)  improve the arrangements for transparency and accountability of the legal aid structures in Northern Ireland; and

    (c)  improve the management of the Legal Aid Department in a manner which was consistent with the principles of the relationship which exists between the Lord Chancellor and the Legal Aid Board in England and Wales.

OVERVIEW OF CIVIL LEGAL AID

  13.  The eligibility requirements for civil legal aid as provided through three structures, that is, advice and assistance (the Green Form Scheme), Assistance By Way Of Representation (ABWOR) and civil legal aid (which includes full representation in the courts) are set out in this section.

  14.  The scope of civil legal aid and the eligibility criteria for applicants are broadly analogous to England and Wales. The main differences of a significant nature are that:

    (a)  in Northern Ireland a contributory Green Form Scheme is still in operation but in England and Wales the requirement to make contributions (assessed against various bands of income) was abolished in 1993; this means that in Northern Ireland the upper financial eligibility limit is higher than in England and Wales and a table of contributions is maintained;

    (b)  in Northern Ireland there are no franchising or contracting powers;

    (c)  in Northern Ireland the merits test remains "reasonable grounds for taking, defending or being a party to proceedings". There is no power in the legislation to operate a flexible system of applying different criteria or tests to different types of proceedings which is now the position in England and Wales under the Access to Justice Act 1999;

    (d)  in Northern Ireland allegations of negligently caused injury, death or damage to property (apart from allegations relating to clinical negligence) can still attract legal aid whereas they are now out of scope in England and Wales;

    (e)  there is no system of formal no win no fee agreements in Northern Ireland, no system of success uplifts or tradition of using insurance products to support litigation in Northern Ireland; and

    (f)  in Northern Ireland the following categories of cases are not specifically excluded from legal aid and could therefore be covered subject to the usual means and merits test by the Green Form Scheme or civil legal aid whereas they are now out of scope in England and Wales:

      (i)  conveyancing;

      (ii)  boundary disputes;

      (iii)  making of wills;

      (iv)  matters of trust law;

      (v)  matters of company law; and

      (vi)  other matters arising out of the carrying on of a business.

The Green Form Scheme

  15.  In respect of the Green Form Scheme authority to grant Green Form advice and assistance is vested in the first instance in the solicitor to whom an application for advice and assistance is made. It is intended to cover preliminary advice and assistance from a solicitor including advice, letter writing, entering into negotiations, obtaining an opinion and can include help with the preparation of a case before eg a tribunal. Advice and assistance stops short of representation in court. There is no merits test except that the question involved must cover any point of Northern Ireland law. There is a means test which is set out in the 1981 Order and the Regulations made thereunder.

  16.  The solicitor is responsible for determining the means of the individual applying for advice and assistance. The solicitor is responsible to assess:

    (a)  the disposable income of the applicant;

    (b)  the disposable capital of the applicant; and

    (c)  the contribution (if any) which the applicant should pay.

  17.  Where the applicant is in receipt of income support, income based jobseeker's allowance, disabled person's tax credit, or working families tax credit, the individual is entitled to receive free advice and assistance.

  18.  Where the applicant is required to make a contribution towards the advice and assistance, the solicitor will inform the applicant of the amount of the contribution required, and be responsible to collect it and pass it to the Legal Aid Department.

Advice and assistance where a person is detained at a Police Station or Holding Centre

  19.  A person detained for questioning at a police station or holding centre is entitled to free advice and assistance from any solicitor under the Green Form Scheme. In such circumstances there is no merits test and the means test does not apply.

ABWOR

  20.  Assistance by way of representation is an extension of the advice and assistance scheme which allows the solicitor and counsel to institute and conduct proceedings on behalf of the assisted person. This is usually in inferior courts, eg the magistrates' court (normally civil matters or matters relating to children). Responsibility for granting applications for ABWOR rests with the Legal Aid Department or the court can grant the application (if there is a degree of urgency).

  21.  Unlike Green Form advice ABWOR does have a merits test. To satisfy the requirements of ABWOR (other than in Mental Health Review Tribunal cases or Board of Visitors or Visiting Committee proceedings where there is an entitlement without a merits test) the applicant must show that he has reasonable grounds for taking, defending or being a party to the proceedings.

  22.  The Legal Aid Department (or the court or tribunal in cases of emergency) in considering applications for ABWOR is responsible for determining the merits of the case.

  23.  Applications can also be refused if it appears unreasonable to grant the application or due to the "simple nature" of the proceedings it would not be required ordinarily to employ a solicitor.

  24.  Determination as to the grant or refusal of ABWOR is final. There is no appeal procedure.

  25.  The means of the individual seeking ABWOR are assessed by the Legal Aid Department or the court. The means test is similar to that for the Green Form Scheme with some differences in the capital ceiling to take account of the representation element.

  26.  The table below gives a broad indication of the level of consistency in respect of the number of ABWOR applications granted each year compared to the number of applications refused. The table is prepared from information contained in the Legal Aid Annual Report of the Law Society. There are variants within the information and it cannot be taken as definitive.

  
Granted
Refused
Refusal Rate of Total
1993-94
9,687
172
1.74%
1994-95
8,837
141
1.57%
1995-96
8,376
126
1.48%
1996-97
8,024
196
2.38%
1997-98
10,036
84
0.83%


Civil Legal Aid

  27.  Schedule 1 to the 1981 Order describes the proceedings for which civil legal aid may be granted. The Schedule indicates that legal aid is available for cases in:

    (a)  the House of Lords in the exercise of its jurisdiction in relation to any appeal from Northern Ireland;

    (b)  the High Court and the Court of Appeal;

    (c)  any County Court;

    (d)  the Magistrates' Court (for cases about marriage and the family; and also in certain circumstances for cases concerning debt);

    (e)  the Lands Tribunal; and

    (f)  the Enforcement of Judgments Office.

  28.  The means of an applicant for civil legal aid are assessed for the Legal Aid Department by the Legal Aid Assessment Office of the Social Security Agency both in terms of their disposable income and disposable capital.

  29.  A distinction is made between applications for claims in respect of personal injuries and other cases in terms of the ceiling of disposable income and disposable capital. In respect of both types of claim the disposable income figures are usually adjusted on an annual basis.

  30.  Where the applicant's means are within the income and capital ceilings a contribution may be required from the applicant.

  31.  The merits test which is applied to civil legal aid applications is set out in Article 10(4) of the 1981 Order. This requires the applicant to show that he has reasonable grounds for taking, defending or being a party to the proceedings. Apart from this merits test for certain applications there are mandatory obligations to provide civil legal aid, for example, under the Children (Northern Ireland) Order 1995.

  32.  If the Legal Aid Department or the Legal Aid Committee, in considering the application, is uncertain whether there are "reasonable grounds", it may grant a limited certificate to enable further information to be obtained eg, an expert's report, so that an informed decision can be made.

  33.  In addition to the reasonable grounds test the application can be refused if it would be unreasonable in all the circumstances that he should receive legal aid or it would be more appropriate to receive ABWOR.

  34.  Where the Legal Aid Department refuse an application for civil legal aid there is an appeal mechanism to the Legal Aid Committee sitting as a statutory Appeal Body. The decision of the Legal Aid Committee is final (but subject to judicial review).

  35.  The table below gives a broad indication of the level of consistency in respect of the number of civil certificates granted each year compared to the number of applications refused. The table is prepared from information contained in the Legal Aid Annual Report of the Law Society. There are variants within the informaton and it cannot be taken as definitive.

  
Granted
Refused
Refusal Rate
1993-94
12,968
2,271
14.9%
1994-95
11,831
2,144
15.3%
1995-96
11,730
1,520
11.5%
1996-97
12,102
2,578
17.6%
1997-98
11,158
3,742
25.1%

  36.  No information is held by NICtS concerning the number of applications, grants and refusals of the Green Form Scheme, ABWOR or civil legal aid made in respect of individual lawyers or their firms nor of amounts of funds from the legal aid fund which they receive.

Remuneration of lawyers

  37.  The basis for determining levels of remuneration under the civil legal aid structures is as follows:

    (a)  unlike England and Wales, there are no prescribed rates of remuneration for ABWOR, instead the hourly rate fixed by the Taxing Master and the High Court applies or guideline fees are fixed by the Legal Aid Committee;

    (b)  in respect of proceedings before a county court in Northern Ireland remuneration is determined by reference to the scale costs prescribed in the County Court Rules (Northern Ireland) 1981 [S.R.1981 No 225]. Under the scale a total set amount is payable in respect of solicitor's costs and in respect of counsel's fees dependent upon the nature of the action and the amount claimed or decreed; and

    (c)  in respect of proceedings heard in the High Court the amounts allowed to solicitors and counsel are subject to taxation (with a reduction of 5 per cent in respect of profit costs). There is no equivalent in Northern Ireland to the Legal Aid in Civil Proceedings (Remuneration) Regulations 1994 which prescribe certain rates of payment to be allowed to solicitors in respect of most civil proceedings in the High Court and county court and including an hourly rate for preparation.

RECENT IMPROVEMENTS TO CIVIL LEGAL AID

  38.  The Director of NICtS must be satisfied that arrangements are in place to safeguard public funds and that safeguards are being applied by the Legal Aid Department in order to conform to the requirements of propriety and good financial management. He must be satisfied that the conditions attached to the grant to maintain the legal aid fund and the grant-in-aid (civil and criminal) conform to the terms of the Vote and that compliance is monitored.

Qualified Account and Action Plan

  39.  The Legal Aid Fund Account and the Court Service Account for 1996-97 were qualified by the Comptroller and Auditor General on the basis that there was material irregular expenditure in respect of the Green Form Scheme (legal aid expenditure is recorded in both Accounts). In 1997-98 both Accounts were qualified on the basis that there was material irregular expenditure in respect of the Green Form Scheme and ABWOR. In December 1997 the Northern Ireland Court Service in co-operation with the Legal Aid Department agreed a plan of action in order to tighten procedures surrounding the operation of the Green Form Scheme (including the assessment of means for ABWOR which is applied for on the same form as for Green Form). The 1998-99 Accounts were certified by the Comptroller and Auditor General without qualification. The following measures have been taken:

    (i)  legal practitioners were reminded by circular and advertisement in December 1997 of their responsibility for determining a client's disposable capital, disposable income and accordingly financial eligibility for legal advice and assistance;

    (ii)  the form of consent which applicants must sign was amended in March 1998 to allow the Legal Aid Department to take whatever steps were necessary to verify the accuracy of any information provided;

    (iii)  applicants now must specify on the form which of the qualifying benefits for free Green Form advice they are receiving;

    (iv)  in March 1998 agreement was reached with the Social Security Agency to introduce spot checking of a sample of the applications against the benefit claimed;

    (v)  the Notes for Guidance attached to the annual key card which is an aid for legal practitioners to determine financial eligibility of applicants for legal advice and assistance were amended in May 1998 outlining the key responsibilities of practitioners;

    (vi)  from September 1998 solicitors were required to complete a certificate on the application form confirming that they are satisfied that the applicant is in receipt of benefit (the statutory test) and stating the basis on which that view had been reached;

    (vii)  posters have been produced and distributed to be displayed in solicitors' practices which inform the public of the need for proofs of benefit when making an application; and

    (viii)  questionnaires have been issued to Assisted Persons to confirm the advice actually given as against the claim for payment for advice by solicitors.

CRIMINAL LEGAL AID

The Scheme

  40.  The Criminal Legal Aid Scheme is essentially the same in both jurisdictions, except that in Northern Ireland:

    (a)  legal aid is provided without contributions and completely free of any charge to defendants who meet the means test, but in England and Wales it is provided on a contribution basis;

    (b)  there are no specific financial eligibility limits;

    (c)  there is no defined meaning in statute of the "interests of justice" merits test.

Grant of criminal legal aid

  41.  The power to grant or refuse criminal legal aid is vested in the court. The decision as to whether or not to grant or refuse is determined by two tests—the means and merits tests.

  42.  Under Articles 28 to 30 of the 1981 Order the court must assess whether an applicant seeking criminal legal aid is of insufficient means to enable him to fund his own defence. The court may require the applicant to complete a Statement of Means Form setting out his means. It is a matter of judicial discretion to decide in the individual circumstances of the applicant and the case whether the applicant either has or has not sufficient means to fund his own defence.

  43.  Having assessed the means of the applicant and merits of the case, the court will either grant criminal legal aid or will refuse the application. Contributions towards the costs of the defence cannot be required in respect of criminal legal aid. Where an applicant is claiming to be on state benefit procedures are being put in place and are almost completed to check the veracity of that claim with the Social Security Agency.

  44.  The court is also responsible to determine the merits test which is whether it is desirable in the interests of justice that an applicant should have free legal aid in the preparation and conduct of his defence (Articles 28 to 30 of the 1981 Order).

  45.  The interests of justice test is not defined in the 1981 Order but the recommendations put forward in the Report of the Departmental Committee on Legal Aid in Criminal Proceedings (the "Widgery Committee") in 1966 (Cmnd 2934, para 180) are generally taken to be the guiding principles. These are:

    (a)  the likelihood of being deprived of liberty;

    (b)  the potential loss of livelihood;

    (c)  the possibility of serious damage to the individual's reputation;

    (d)  whether a substantial question of law is involved in the case;

    (e)  whether the applicant has an inadequate knowledge of English;

    (f)  whether the question would require the tracing and interviewing of witnesses;

    (g)  the need for expert cross-examination of prosecution witnesses; or

    (h)  whether it would be in the interests of someone other than the accused that the accused be represented.

  46.  Article 31 of the 1981 Order indicates that if there is any doubt whether criminal legal aid should or should not be granted, the doubt is to be resolved in the applicant's favour.

Remuneration

  47.  Criminal legal aid remuneration in Northern Ireland is regulated by the Legal Aid in Criminal Proceedings (Costs) Rules (Northern Ireland) 1992 (S.R.1992 No.314) ("the 1992 Rules"), which prescribe standard fees for cases meeting certain criteria and rates of remuneration to be applied to various elements of work undertaken by lawyers in non-standard fee cases. These Rules were modelled on the equivalent Regulations in England and Wales (that is, the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989), but modified to take account of Northern Ireland circumstances, including the different statutory test (see paragraph 49) and for example, non-jury criminal trials under anti-terrorist legislation.

  48.  There are a number of differences in respect of the method of assessing costs in Northern Ireland as compared to England and Wales. The following are worth noting:

    (a)  in Northern Ireland the Appropriate Authority which determines fees in non-standard cases in accordance with the 1992 Rules is a committee of three persons: a solicitor, a barrister and a lay person all of whom are appointed by the Lord Chancellor. Where the Appropriate Authority proposes to allow fees above a fixed level, the amount so allowed must firstly be certified as appropriate by the Taxing Master;

    (b)  in England and Wales the Appropriate Authority is an officer appointed by the Lord Chancellor (Crown Court proceedings) or the Legal Aid Board (Magistrates' Court proceedings);

    (c)  the Northern Ireland scheme operates an extra statutory system of composite fees for Magistrates' Courts proceedings as opposed to the prescribed standard fee system operating in England and Wales; and

    (d)  there is no provision in Northern Ireland for graduated fees in respect of advocacy in the Crown Court.

  49.  The most significant distinction is the duty placed on the Lord Chancellor when determining rates of remuneration for criminal legal aid work. In Northern Ireland, the Lord Chancellor must ensure that rates are fair for work reasonably undertaken and properly done (Article 37 of the 1981 Order), but in England and Wales he must have regard to six statutory factors (Section 34(9) of the 1988 Act) before determining the rates. The six factors are:

    (a)  the time and skill which the work requires;

    (b)  the general level of fee income arising from the work;

    (c)  the general level of expenses of legal representatives which is attributable to the work;

    (d)  the number and general level of competence of legal representatives undertaking the work;

    (e)  the effect of the regulations on the handling of the work; and

    (f)  the cost to the public funds of any provision made by the regulations.

  50.  In Northern Ireland the fees paid in respect of each case are assessed by the Appropriate Authority. The Taxing Master and the courts have supervisory control over the level of fees to ensure they represent fair and reasonable remuneration.

  51.  The table below indicates the level of consistency in all courts throughout Northern Ireland in respect of the number of applications refused for free legal aid each year compared to the number of applications granted.

  
Granted
Refused
Refusal Rate
1995
24,501
711
2.8%
1996
25,554
894
3.4%
1997
24,102
795
3.2%
1998
23,463
857
3.5%
1999
23,109
944
3.9%


  52.  No information is held by NICtS concerning the number of applications, grants and refusals of criminal legal aid made in respect of individual lawyers or their firms nor of amounts of funds from criminal legal aid which they receive.

RECENT DEVELOPMENTS IN THE CRIMINAL LEGAL AID SYSTEM

  53.  In 1997 the NICtS undertook a review of the Legal Aid in Criminal Proceedings (Costs) Rules (Northern Ireland) 1992 ("the 1992 Rules"). The review sought to identify where the operational efficiency of the arrangements prescribed by the 1992 Rules might be improved within a cost neutral context. Priority has since been given to bringing forward the major legal aid review announced to Parliament in February 1998. The major review will include taking forward some of the recommendations arising from the review of the 1992 Rules.

  54.  Circulars issued to Resident Magistrates and Judges in 1984 and then in March 1998 in respect of control issues surrounding the granting of criminal legal aid. In particular reference was drawn to the interests of justice criteria and their powers to refer cases to the Social Security Agency. In February 1999 a circular issued in respect of the powers of the judiciary to refer applications for criminal legal aid to the Social Security Agency for an investigation.

  55.  A new and more comprehensive Statement of Means Form (which is submitted to apply for free criminal legal aid) was introduced in June 1999.

  56.  All applicants are asked to provide documentary evidence of means and the applications of those who claim to be on benefit but do not produce documentary evidence are referred to the Social Security Agency to be verified. A Service Level Agreement between the Social Security Agency and the Northern Ireland Court Service is in place which specifies the performance levels expected.

  57.  The Judicial Studies Board for Northern Ireland facilitated a seminar on 14 April 1999 with the Resident Magistrates to explain the improvements to procedures. Resident Magistrates and Judges received a personal copy of the Notes for Guidance which explained the new procedures in detail.

  58.  All newly appointed County Court Judges, Resident Magistrates and Deputy Resident Magistrates now receive a criminal legal aid "starter pack" which includes the new Statement of Means form, the latest circulars and a copy of the Notes for Guidance in relation to the system.

ACCOUNTABILITY

  59.  The Director of the Northern Ireland Court Service as Accounting Officer is responsible for ensuring, in relation to all legal aid expenditure voted by Parliament that payments made are within the ambit and the amount of the Vote and that approval from Parliament is sought and obtained.

  60.  The establishment of Management Statements and Financial Memorandums, covering both civil and criminal legal aid, in December 1997 set out the agreed aims, objectives and functions of the Legal Aid Department of the Law Society and specified the inter-relationship between the Law Society (through its Legal Aid Committee and its Legal Aid Department) and the Northern Ireland Court Service.

  61.  The Chief Executive of the Legal Aid Department is the Accounting Officer for the Legal Aid Department and is accountable to the Director of the NICtS for the expenditure of the grant to maintain the legal aid fund and grant-in-aid (civil and criminal). He is accountable for the regularity of expenditure and for the effective and efficient administration of the Legal Aid Department.

  62.  The Chief Executive of the Legal Aid Department has responsibility for the propriety of the Department's expenditure and must also ensure that best value for money is obtained. He must make sure that there is good management of public money and that the Department operates as efficiently, effectively and economically as possible.

  63.  The Chief Executive of the Legal Aid Department gives advice to the Legal Aid Committee on all matters of financial propriety and regularity and on all matters of prudent and economical administration. Therefore it is his responsibility to ensure that effective checks and controls are in place and that accounting records are maintained in accordance with professional codes and practices.

  64.  Each year the accounts are audited by persons appointed by the Lord Chancellor and in accordance with a scheme of audit approved by the Lord Chancellor as required by Article 20 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.

  65.  The Northern Ireland Audit Office acts as an agent of the National Audit Office. The Comptroller and Auditor General certifies and reports to Parliament annually on the audited and published accounts.

  66.  The Legal Aid Advisory Committee has a statutory responsibility under Article 23 of the 1981 Order to consider and provide the Lord Chancellor with advice on the operation and finance of the legal aid scheme. The Legal Aid Advisory Committee Report is published and laid before Parliament.

  67.  The Law Society's Legal Aid Annual Report is published and laid before Parliament each year. The Report comprises the Law Society's report on the operation and finance of the Legal Aid Committee and of the Legal Aid Department, including the audited statement of accounts and the Legal Aid Advisory Committee's report. This report is widely circulated and is available from the Stationery Office.

  68.  The privilege between a lawyer and client who is in receipt of civil legal aid is protected by the 1981 Order. The fact that legal services are funded by legal aid does not affect the client's relationship with his legal advisors, nor any privilege arising out of that relationship other than for the purposes of administering legal aid.

  69.  The Taxing Master has general oversight of remuneration both in respect of full civil legal aid, where cases are referred to him for taxation, and criminal legal aid, where cases above a level are referred to him for approval or the re-determination of Appropriate Authority determinations (appeals). The High Court has supervisory jurisdiction through appeal procedures.

  70.  The Legal Aid Committee publishes each year as part of the key statistics presented in support of its annual report, details of the success rate of legally aided cases decided in the year.

OPENNESS

Notification of Award of Civil Legal Aid

  71.  When civil legal aid is granted the opposing party is put on notice that a civil legal aid certificate has been granted. As a result the opposing party is free to pass any information which may be relevant and known to the opposing party to the Legal Aid Department.

Criminal Legal Aid Applications

  72.  Applications for criminal legal aid are made and granted or refused in open court.

Lay Representation on Appropriate Authority

  73.  A lay representative sits as a member of the Appropriate Authority with a solicitor and a barrister to determine costs awarded in individual cases in criminal matters.

CONCLUSION

  74.  To address concerns the following steps have been taken:

    (a)  the introduction of Management Statements and Financial Memorandums setting out the responsibilities and relationships between the key parties;

    (b)  the Legal Aid Department of the Law Society has been subject to continual review and has new organisational structures in place;

    (c)  a new computer system has been procured which will significantly improve management information and operational efficiency;

    (d)  a review of the systems in relation to the grant of criminal legal aid has been undertaken and control measures introduced, together with training and supply of information for key judiciary;

    (e)  an Internal Audit Service has been established within the Legal Aid Department (through the secondment of an auditor from NICtS);

    (f)  a review of the Green Form Scheme (including ABWOR) has been completed to address control weaknesses identified by the Northern Ireland Audit Office;

    (g)  a major review of the existing legislation has been undertaken by the Government; there has been extensive consultation and decisions on reforms are in the course of being made.

ENCLOSURES

  The following documents are enclosed[1]:

    (a)  the Consultation Paper "Public Benefit and the Public Purse";

    (b)  the latest published Law Society Annual Report (for 1997-98) and the associated Legal Aid Advisory Committee's response (2nd section of the report).

April 2000


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