Select Committee on Northern Ireland Affairs Fourth Report


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The Government's intention was "not some minor tinkering with an outdated system but a root and branch review."[25]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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