Examination of Witnesses (Questions 1
WEDNESDAY 25 APRIL 2001
1. We are extremely apologetic to have kept
you waiting in the corridor in the way we have. It will not improve
matters at all if I say this is the first time we have ever done
anything like this to a witness. I hope you all believe that we
are in a position where, given the fact we are uncertain how long
this Parliament is going to last, there was one matter which we
needed to resolve before we went into public session with yourselves.
We are extremely sorry you should have been inconvenienced by
that course of events.
(Lord Bach) We were not inconvenienced at all. I think
by the end of session, because of my throat, you will be inconvenienced
2. A very warm welcome to you, my Lord, and
to your colleagues. The ground rules under which we operate, which
I think are probably familiar to you, is that we will endeavour
to make our questions follow a logical order so that we are not
constantly jumping round, although it may mean we jump around
the horseshoe. You should feel entirely free to gloss any answer
you give, either today or in writing afterwards, if you feel that
there is something that we might have misunderstood or which you
wish to expand further. Likewise, we would regard ourselves as
free to ask a supplementary question in writing if there was something,
on reading the transcript, which we had not wholly followed. I
understand there is a possibility you might like to say a word
or two as an opening statement. If that is so we would be delighted.
We have the advantage of knowing who your colleagues are, because
their names are facing us, but if you would like to introduce
them please do that as well.
(Lord Bach) I will be as quick as I can in my opening
remarks. I am grateful for the opportunity to bring to the Committee's
attention some of the issues which I think it is important to
highlight at the outset. May I introduce Glenn Thompson, the Director
General of the Northern Ireland Court Service, who is on my left,
and Alan Hunter, the Director of Legal Aid, who is on my right,
who are here with me to assist the Committee. I will not hesitate,
with your permission, to ask them to deal with matters that I
am not able to. It is more important that you should find out
what we are thinking.
3. If it helps your voice we would be content
for them to be answering questions that you yourself would have
been answering otherwise.
(Lord Bach) Thank you. As members of the Committee
will know, the Northern Ireland Court Service is a department
of the Lord Chancellor and supports the Lord Chancellor in the
exercise of all his functions in Northern Ireland. The memorandum
that was submitted to this Committee last April gives an overview
of how the present scheme works in Northern Ireland, and it will
be obvious that the Government has many concerns about a number
of aspects of the current scheme. When we came into office four
years ago, we were committed to a review of many aspects of the
Legal Aid Scheme in England and Wales and that review resulted
in the Access to Justice Act 1999. It was obvious to the Lord
Chancellor on taking office that there had been no substantial
reform of legal aid in Northern Ireland since the Legal Aid Advice
and Assistance (Northern Ireland) Order 1981 had been made. That
piece of primary legislation remains the existing legislation
governing legal aid in Northern Ireland now. What we had in mind
in initiating the reform agenda was not some minor tinkering with
an outdated system but a root and branch review. At the same time
we recognise, and this is very important, there are features unique
to Northern Ireland and those need to be taken into account. What
we were looking for was a Northern Ireland answer to a Northern
Ireland question. What we did not want to do was get caught up
in the small detail of issues which might otherwise blur the major
issues which need to be addressed in order to deliver a modern,
transparent legal aid system, both up-to-date and also taking
account of local factors in Northern Ireland. May I say now that
the Government very much welcomes the keen interest which your
Committee takes in the issue of legal aid reform in Northern Ireland.
It is a technical and difficult subject and we are committed to
listening to all of those with an interest in these matters. It
goes without saying that your views and recommendations will be
invaluable in our working through the detail and the practical
application of much of what we are seeking to do through setting
up structures under the new Order in Council. The Lord Chancellor
set out the objectives of the Legal Aid Review in his consultation
paper Public Benefit and the Public Purse published in June 1999
and they were repeated in the White Paper published on 19th September
last year. I believe the solutions to the local issues set out
in the White Paper will deliver our objectives. The issue in cost
terms we cannot run away from is this, we have to face the increase
in the Legal Aid Fund. Between 1990/1991 and 1999/2000 the net
fund expenditure increased from £12.19 million to £34.65
million, which represents an increase of 116 per cent in real
terms. We do not think this rate of increase can continue. We
have completed our review. We have a framework for a new legal
aid system set out in the White Paper, The Way Ahead. It is right
to say that many of the details need to be worked out and we intend
to do that in consultation with all interested parties, as we
have done up to now. Further consultation will take place when
the proposal for the draft Order in Council is published in the
autumn of this year. We have indicated to the consultees that
working groups will be established to look at various key issues
which need to be worked through in detail. We have listened seriously
to representations made during the consultation process and the
White Paper sets out a Northern Ireland answer to a Northern Ireland
question. We have not imported a different legal services culture
into Northern Ireland. We believe that the consultation process
has resulted in each of the consultees who responded to the paper
being engaged in the process and that the structures and solutions
set out in the White Paper will deliver a legal aid scheme for
Northern Ireland which is appropriate to the size and nature of
the community as a whole. I hope these few comments are of some
assistance in setting out our thinking. I am going to close now
because what is important is what you have to say, and more important
still, that which you have to ask. I will attempt to answer all
of the questions.
4. Thank you very much indeed for that. Let
me ask one or two ground-clearing questions to start off with.
In terms of your proposal for a draft Order in Council to implement
the new system of legal aid in Northern Ireland, when do you expect
to bring that forward?
(Lord Bach) We hope there will be draft legislation
by autumn 2001. We hope that following that we would be able to
place the draft legislation before the Assembly for them to consider,
it they choose to do so. We have written to the Bar and the Law
Society in Northern Ireland setting these matters out.1
We hope that the Legal Services Commission, which would run the
legal aid system in Northern Ireland, would be up and running
by October 2002. This is our present timetable and we want to
keep to it, but it is subject to continuous review. I want to
make the point again, if I may, at all stages we hope that the
consultation process will continue, particularly after the draft
legislation is published.
5. If I can get you to expand on the figures
you mentioned in your opening statement. When Mr Vaz published
his forward consultation document he drew attention to the fact
that the net expenditure on legal aid per head, and the cost of
proceedings in Northern Ireland, are much less than in England
and Wales. What view does the Government take on why this is so
and, in particular, are costs lower in Northern Ireland or is
there a lower legal aid take-up than in England and Wales?
(Lord Bach) Chairman, you are undoubtedly right, there
is a lower per capita spend, that, I think, historically has been
true. In similar matrimonial cases the rates are set by the Taxing
Master under the supervision of the High Court and, of course,
in criminal cases there are standard fees. It is right to say
that the Appropriate Authority takes a decision in a large number
of criminal cases. We think the hourly rate, we have considered
your question, is a reflection of both overheads and profits.
What we need to do when setting new standard fees, which is one
of our purposes, is to engage closely with the professions and
others to find out what the actual overheads are. I have to say
there has been some reluctance to discuss those with us so far
we hope that may change. The answer to your question as to why
there is a lower per capita costI suspect the best I can
do is to say that it is historical. It may be that there has not
been so much litigation, I know not. What concerns the Government,
of course, and would concern any government, is the large increase
that there has been in net fund expenditure over the last nine
years between 1990-91 and 1999/2000. We do not think there is
really any satisfactory explanation for that.
6. I want to ask one supplementary question
arising out of the comparison about which I was asking; has the
expenditure gone up in Northern Ireland significantly faster over
(Lord Bach) Yes, it has. I am not saying it has not
gone up fast in England and Wales. From the figures I have, the
equivalent of a 116 per cent increase in England and Wales is
88.1 per cent over the same period. To break it down a little
bit more, I hope for the convenience of the Committee, in the
criminal law field the increase has been 205 per cent in Northern
Ireland, I am talking about real terms, as opposed to 82 per cent
in England and Wales. In civil legal aid it is fair to say the
increase in real terms has been higher in England and Wales, 94
per cent to 82 per cent.
As you will know, Chairman, we have taken steps as far as civil
legal aid is concerned in the Access to Justice Act and in the
setting up of conditional fees in a large part of what was the
civil legal aid budget. I hope that is a help.
7. That is helpful. To ask an expenditure question,
can you remind me if provision has been made for expenditure in
each of the next three years in the three categories, one, criminal
legal aid and then a breakdown between civil non-family and civil
family; is that expenditure already in the public domain?
(Lord Bach) I will not be able to answer the detail
of your question, I am afraid. I can say that the provision under
the Spending Review of last year, SR 2000, is some £43 million
per annum, covering both the Legal Aid Fund and the administration
grant, the grant-in-aid. Work is presently under way in determining
financial allocations between the various fields over the next
three years. We will try and find out how far those discussions
have got and write to the Committee.
8. That £43 million is the figure in the
(Mr Thompson) It is the same figure across each of
the three years.
9. Can I clarify how that compares with the
figure of £34 million, which was quoted in the Minister's
(Mr Thompson) The figure of £34 million was 1999/2000,
we are dealing now with 2001/2002. Expenditure last year, Mr Chairman,
on the Legal Aid Fund was of the order of £38 million.
10. £38 million.
(Mr Thompson) There was a grant-in-aid to the Legal
Aid Department in excess of £2 million. We are anticipating
an increase in spend over the three year period. We hope to see
some of these reform changes coming into place towards the end
of the period and then more effectively in the next financial
cycle, which would be SR 2002; we certainly hope to see some real
benefits of the changes that we are making. There is a time lag,
where the present system runs as it is until the new Order in
Council is enacted and we have the new arrangements in place.
11. In the percentage differences between England,
Wales and Northern Ireland the Minister gave me a moment ago,
it did actually affect a breakdown between criminal and civil?
(Mr Thompson) Yes.
12. In your figure leading up to £43 million
are there similar projected breakdowns or is it simply an agglomerated
(Mr Thompson) At the moment it is a total figure.
We are discussing the detailed breakdown of that at the moment.
We hope to have within the next month a full picture of how that
total figure will be broken down between criminal, civil, grant-in-aid,
and so on.
13. Do you have a break down of the £38
(Mr Thompson) We do.
14. We do not need it now, but it would be helpful
to have it after the event.
(Mr Thompson) Yes.
(Mr Alan Hunter) Perhaps I could clarify
in terms of the recently finished financial year, the profile
would indicate about 60 per cent of the £38 million is criminal
15. 60 per cent of the £38 million.
(Mr Alan Hunter) Yes.
16. I will not ask you questions about the year-on-year
percentage increase because it sounds as though we do not have
an update to be able to make that judgment. If you are able to
give us a year-on-year increase over the three years and compare
them to three prior years that would be helpful?
(Lord Bach) We will certainly do that.
Can I make one other point about the 1990/1991 and 1999/2000 figures,
that is between criminal and civil legal aid, the percentages
are interesting: of the fund 48 per cent went on criminal in 1991,
that was up to 67 per cent by 1999/2000, whereas civil went down
from 23 per cent to 20 per cent. The rest are made up of the ABWOR
and legal advice and assistance. There was a big increase in criminal
legal aid expenditure, something we should bring to the Committee's
[Chairman:] We would have inferred that
from the figure you quoted before of a 205 per cent increase in
Northern Ireland over last 10 years as against 82 per cent in
England and Wales.
Mr Andrew Hunter
17. Lord Bach, leaving aside the terrifying
increase in the cost of legal aid over the last 10 years, can
you select from the memorandum or from your wider thoughts, in
what other respects the present system is unsatisfactory?
(Lord Bach) Yes, I will do my best to answer that.
I think it is important to point out there has been no real reform
for 20 years. The system that prevails at the moment is really
the equivalent of the 1974 Legal Aid Act system that applied in
England and Wales until 1988. We think that the administration
arrangements under the present system have been unsatisfactory,
and we are not alone in thinking that. All of the consultees,
whatever their views on other matters, were confident that we
were right in removing the running of the legal aid system effectively
from the Legal Aid Department of the Law Society. We accept the
excellent work that the Law Society has done in that regard but
it is time to pass it on to an independent service, the Northern
Ireland Legal Services Commission. We think one of the weaknesses
of the old system was that it was not transparent enough in the
sense that it will be under the Legal Services Commission. We
have referred to increases in costs. We do not think there is
any flexibility under the present system in respect of targeting
the social need agenda. I mention that specifically because the
Northern Ireland Assembly has, on a cross-party basis, made it
clear that social need is a key aspect of the Northern Ireland
Executive Programme for Government. We feel that our changes,
particularly with the Funding Code, can make it easier for the
limited amount of money that there is for civil Legal Aid to go
in the field of social need, rather more to go in that field,
than has been going into it in the past. We think the system is
out of date. We think the administrative arrangements are unsatisfactory.
We do not think it caters for social need sufficiently. Then,
of course, we come back to the point about costs as well. That
was rather a full answer I am afraid.
18. Do you think that addressing the imperfections
in administration, making the system more transparent and focusing
more on social needs, will these three ingredients have a cost
implication? Will they help reduce the costs?
(Lord Bach) That absolutely depends on the system
that we set up. As far as criminal legal aid is concerned we,
of course, intend to go down the standard fee route. There are
standard fees at the moment, as I said in my opening, but it has
to be admitted that the exceptions to standard fees have been
the rule rather than the exception for the last few years, so
the standard fees system has not worked particularly well. We
are determined that the new standard fees for criminal legal aid
will be there and exceptions will be very, very rare indeed. We
hope in that way - although, of course, you cannot cap criminal
legal aid costs, because it would be wrong to do so, it is necessary
for human rights purposes, as well as anything elsethere
should be sufficient money for people who are charged with criminal
offences. It is what we do in the civil legal aid field that is
crucial here. Let me be frank, we have not yet decided on what
sort of system we are going to adopt in terms of conditional fee
agreements, CLAF, or some third way between them, in order to
try and counter the increased cost of civil legal aid. Our Funding
Code, which will set out priorities for spendingand I hope
I may be able to say a few words about that laterwill set
the priorities for our civil legal aid spending. We think by using
a Funding Code and having a capped budget for civil legal aid
we will really affect costs.
19. Yes. Thank you for that. Turning to another
point, I eventually passed to your office allegations about irregularities
in the payment of Legal Aid through solicitors to those who helped
prepare cases. Leaving aside those specific allegations, because
the rest of the Committee is not aware of them, in general terms
do you believe this may be or may have been an area for abuse
(Lord Bach) I am not going to talk about individual
cases, and I am grateful to you for having sent me the papers.
I have written back to you this week. No, I have no evidence from
which I can say that there has been the kind of misbehaviour,
to use a neutral phrase, that you suggest, but, of course, what
you have sent to us will be examined and is being done with great
care and with as much haste as possible in order to see whether
there has been any mismanagement. I am not prepared to say that
the present system must go because there have been proven cases
of misbehaviour. I cannot go that far, and it would be wrong for
me to do so.
3 See also Ev. p. 24. Back
Note added by Witness: For revised statistics, updating
some of the figures given in this answer, see Ev. p. 26. Back
See Ev. p. 24. Back
See Ev. p. 24, 25. Back
See Ev. p. 24, 25. Back