III. THE GOVERNMENT'S PROPOSED REFORMS
10. The brief given to the officials who conducted
the original review announced in February 1998[23]
was:
- to undertake a review of the arrangements for
the administration and provision of legal aid in Northern Ireland,
bringing forward recommendations for change where necessary; and
- to consider in the Northern Ireland context the
proposed reforms to legal aid in England and Wales.[24]
The Government's intention was "not some minor
tinkering with an outdated system but a root and branch review."[25]
11. The objectives of the review were summarised
by the Court Service as:[26]
- ensuring appropriate funding arrangements are
in place to secure access to the most appropriate means to resolve
legal issues for citizens;
- targeting resources to those in greatest need;
- ensuring that the overall cost of legal aid is
affordable and controllable;
- securing value for money from quality legal services;
and
- establishing the most effective and efficient
administrative structure to deliver publicly funded legal services.
The key proposals to achieve this, as put forward
in "Public Benefit and the Public Purse", were:[27]
- establishment of 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;
- establishment of 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;
- securing 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
- ensuring the most appropriate and cost effective
solutions are available to the public.
12. The legal profession in Northern Ireland operates
somewhat differently from that in England and Wales, with many
smaller solicitors' practices, and less specialism. The Legal
Aid Advisory Committee expressed concern that there should not
be a simple importation of English reforms without testing whether
they were appropriate to Northern Ireland. It expressed particular
concern that "no research has been carried out into the provision
of legal aid services in Northern Ireland so as to inform policy
makers of the real needs of consumers in the Northern Ireland
market."[28]
13. In his foreward to the White Paper, Mr David
Lock, MP, the Parliamentary Secretary in the Lord Chancellor's
Department who then had responsibility for legal aid in Northern
Ireland, recognised the distinctive position in that jurisdiction
in the following terms:[29]
"We stated in the Consultation
Paper that we recognise that the legal services landscape in Northern
Ireland has a number of distinctive features and we indicated
the Government's commitment to recognition of the Northern Ireland
legal services culture which is distinct from that in England.
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."
Lord Bach summarised the position thus:[30]
"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."
14. In the White Paper, the Government confirmed
its intention to transfer responsibility for the administration
of publicly funded legal services from the Law Society to the
proposed Northern Ireland Legal Services Commission (LSC), to
whom it is envisaged that the existing staff will transfer.[31]
It also confirmed that three separate budgets will be established
to cover civil non-family, civil family and criminal cases. The
two civil budgets will be capped, but the LSC will have power
to move funds between them. The criminal budget will be separate
and related to a demand-led volume of cases, as criminal legal
aid costs cannot, as a matter of principle, be capped.[32]
15. Other cost control measures will also be introduced.
Amongst these, the White Paper proposes that a range of all inclusive
standard fees for payment of legal service providers be developed,
across all legal services (civil, family and criminal). In setting
these fees, the Lord Chancellor will adopt a 'best value' approach,
looking at a range of factors, including the supply of providers,
the value of the work undertaken and the quality of service required.
Existing fees will not necessarily be the starting point for fixing
standard fees.[33]
There would be special arrangements for high cost and "exceptional"
cases,[34]
but the White Paper makes clear that the Government envisages
that such cases will be rare, falling outside the "swings
and roundabouts principle" of standard fees.[35]
It also envisages the development of a Funding Code, to replace
the existing merits test for civil legal aid, which will become
the new test to determine if public funds will be made available
to assist a case. In addition, the LSC will be empowered to establish
a salaried lawyer structure to provide legal services directly
to the public, in both civil and criminal matters, and to enter
into contracts with legal service providers (who may include non-lawyers
and the not for profit sector) for specialist or new services.
16. In addition, the White Paper states that further
consideration will be given to opening up alternative ways of
funding claims for money damages. Potential models include the
establishment of a self financing Contingency Legal Aid Fund (CLAF)
or Conditional Fee Agreements (CFAs). These options will be the
subject of further discussion and the Legal Aid Advisory Committee
is currently engaged in an investigation into the merits of a
CLAF for Northern Ireland.[36]
17. A third element in the Government's proposals
is measures aimed at ensuring that services funded through legal
aid are of high quality. All legal service providers wishing to
offer legal services at public expense will be required to register
with the LSC and only registered service providers will be authorised
to provide publicly funded legal services. All providers registered
with the Commission will be required to comply, both corporately
and individually, with the terms of a Code of Practice which will
establish standards which must be satisfied by the provider. Compliance
with the requirements of the Code of Practice will be the subject
of audit inspection by the LSC and different Codes of Practice
may be developed for different services, with different requirements.
The White Paper also indicates that the contents of these Codes
of Practice and the audit requirements of these quality assurance
mechanisms will be the subject of discussions with legal service
providers.
23 Official Report, 19 February 1998, Vol. 306, Col.
845W. Back
24 These
were enacted in the Access to Justice Act 1999. Back
25 Q
3. Back
26 Ev.
p.1-2. Back
27 Ev.
p. 2. Back
28 Appendix
1, p. 27. Back
29 Cm.
4849, p. 3. Back
30 Q
3. Back
31 Cm.
4849, p. 6, 14, 25. See also Q 17. Back
32 Cm.
4849, p. 6, 17. Q 18. Back
33 See
Cm. 4849, paras 53 to 56: the Legal Services Commission will have
a role in providing information and advice. See also Q18 and
Q 33-35. Back
34 See
Cm 4849, paras 58 and 64 to 66. Back
35 Cm.
4849, p. 18. Back
36 Appendix
2, p. 27. See also Q 24, 49-54, and Ev. p. 24-25. Back
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