APPENDIX 10
Memorandum submitted by Mr Brian F Walker
I have been asked to comment upon the government
paper on legal aid reform. I do so as a Solicitor in general practice
in a provincial town and on my experience as former President
of the Law Society in Northern Ireland and as a member of the
group which revised the management structure of the Legal Aid
Department.
I have no difficulty in agreeing with the objectives
set out in the paper and listed below:
(a) people who cannot afford to resolve their
legal problems except through access to publicly funded legal
services must seek to achieve the most effective, efficient and
economical resolution of their dispute (as any individual citizen
spending their own funds would do);
(b) public funds for legal services should
be targeted towards those whose need is greatest;
(c) publicly funded legal services should
be of high quality. Expenditure on public funds for legal services
must provide value for money. It must be efficient in its own
right and achieve maximum effectiveness;
(d) the overall cost of publicly funded legal
services must be affordable and controllable;
(e) people should pay what they can reasonably
afford towards the cost of publicly funded legal services;
(f) the system of remuneration for publicly
funded legal services should create incentives for effectiveness,
high quality and efficiency;
(g) the structures for the administration
of legal aid must meet the standards of bodies charged with making
payments out of public funds.
To this I would add another two objectives to
ensure access to justice for all citizens through the network
of solicitors:
(h) to ensure that the reform of legal aid
is co-ordinated with various other reform proposals of the legal
system in Northern Ireland;
(i) to take account of the present structures
in relation to the regulations of the legal profession and the
administration of the Courts.
(a) People who cannot afford to resolve their
legal problems except through access to publicly funded legal
services must seek to achieve the most effective, efficient and
economical resolution of their dispute (as any individual citizen
spending their own funds would do);
It is clear that the present arrangements for
funding legal aid have been less than adequate. Over recent years,
there have been requests to provide emergency funding and it has
become increasingly evident that the public purse is not inexhaustible.
Although the expenditure per head of population
in Northern Ireland on legal aid is substantially lower than in
Great Britain, it is nevertheless a legitimate aspiration of government
to limit the resources committed to such expenditure. Present
arrangements with the Law Society for administration has had its
difficulties but the recent co-operation between Courts Service
and the Society in restructuring the management of the Department
culminating in a new Corporate Plan has demonstrated what might
be achieved by close co-operation between the two bodies.
For the purpose of this paper I have omitted
to deal substantively with the funding of criminal legal aid and
have concentrated on civil legal aid. My belief is that if government
ensures appropriate funding arrangements for access to justice
then it is not necessary that all of the funding should come from
the public sector. I do not accept that contingent fees are the
appropriate solution since I believe that ultimately they would
not be in the interests of the client. I do not think it is necessary
to elaborate on this since most of those parties who have been
consulted on this subject share this view.
My proposal is that a Contingent Legal Aid Fund
(CLAF) should be established and administered by the proposed
Commission.
I propose that government prime a Contingent
Legal Aid Fund (CLAF) with sufficient funds for the first three
years. The central tenet would be that the client would commit
five per cent of the damages awarded up to a ceiling of £5,000.00.
Damages would be payable to CLAF in the same way as they are now
to the Legal Aid Department.
Any person who is in receipt of Income Support
would be eligible to apply and the defendant would not be able
to recover costs. For these persons the only difference from the
present system would be the loss of 5 per cent damages.
All clinical negligence victims would be eligible
on a similar basis. Since most of these are ultimately defended
by government, I see little point in the defence being able to
recover costs. The ceiling of £5,000.00 might be increased
for such cases. In addition there may be other special categories
eg cases against the police, human rights, cases against statutory
authorities.
Clients who are above the income support level
could apply for CLAF but if the case were lost the defence could
recover costs against CLAF. In this event both solicitors and
barristers on behalf of CLAF could only recover 65 per cent of
their professional fees. In all cases there would be no provision
for interim fees.
If the client rejected CLAF or was a defendant
then he could apply for legal expenses insurance from the Commission.
This premium would be set at a competitive rate and it would be
for the Commission to decide whether there would be cross subsidisation
between the schemes.
In both cases, the present application system
and appeals procedure would remain with the imposition of time
limits for decisions. A review of the scheme would commence after
three years.
Lawyers would enter into an agreement with the
Commission to:
(a) refer clients only to the Commission.
Thus the Commission would receive good and bad cases and would
not be obliged to deal only with bad cases;
(b) To submit to a minimum standard of monitoring
of files by the Law Society;
(c) To either pay an annual set amount with
the Commission or pay five per cent of all fees to the Commission.
The choice would be the lawyer's. These funds to be used to cover
losses when lawyer's success rates proved unacceptable and fund
monitoring;
(d) To acknowledge the right of the Commission
to suspend or dismiss the lawyer from membership subject to a
defined appeals procedure.
Thus the Commission will have the following
sources of funding.
(a) Initial government seed money.
(b) 5 per cent of poor client and special
category cases.
(c) 5 per cent of all other CLAF successful
cases.
(d) 5 per cent of fees or annual fees.
(e) Legal expenses premiums.
It would still be possible for solicitors to
privately fund actions or for other legal expenses operations
to continue. The advantages of the Commission would be:
(a) an application method which will allow
an appeal hearing before colleagues,
(b) a monopoly of Income Support Clients,
(c) a great advantage in special category
cases,
(d) all types of funding arrangements under
one umbrella,
(e) monitored standards of performance.
(b) Public funds for legal services should
be targeted towards those whose need is greatest;
I agree that this is a reasonable objective
but it should be borne in mind that there is a body of opinion
which contends that because public funds have been so directed
in the past and because no costs can be sought against a legally
assisted person then potential defendants have been disadvantaged.
By the suggestions made above, a greater number of people will
be eligible to receive funding. The sources of the funding available
under these proposals will mean that a greater volume of public
funds can be devoted to those in greatest need since many successful
plaintiffs will essentially be paying for funding out of their
claims. However in this proposal such targeting would not be at
the expense of middle income citizens which is the situation at
present.
(c) Publicly funded legal services should
be of high quality. Expenditure on public funds for legal services
must provide value for money. It must be efficient in its own
right and achieve maximum effectiveness;
This is a fine principle but the mechanism by
which this result can be achieved may well lead to unforeseen
difficulties. It is not in the public interest to have two regulators.
If a solicitor is responsible to the Law Society then it would
be unreasonable to request the same solicitor to be responsible
to another body with possibly a different set of criteria. It
may well be debatable whether or not the legal profession should
be regulated by its own professional bodies and it may well be
that there should be a greater degree of transparency than presently
exists. It is however undeniable that the Law Society has had
a reasonably successful record in such regulation and that it
has moved on to create its own monitoring vehicle for conveyancing.
The previous Lord Chancellor and I agreed the framework some years
ago and it was commenced on a voluntary basis. It is controlled
by a committee of lay persons and lawyers. This scheme became
compulsory on 1st January of this year and has been successful
in delivering most of the objectives sought by Government for
conveyancing procedures in England and Wales. It is surely reasonable
that the success of this scheme should be built on and that the
Society should be encouraged to develop similar models for the
provision of other legal services. If the Society were to adopt
a Legal Aid Charter Scheme controlled by a committee of lawyers
and lay persons employing monitors which, this could deliver a
valuable service to the Commission and the public at minimal expense.
If this is not done then there is the real possibility that the
whole of the profession or even the majority of the profession
will make itself available for the provision of legal services
to the Commission and this would be an undesirable result.
(d) The overall cost of publicly funded legal
services must be affordable and controllable;
I do not accept that only publicly funded legal
services should be affordable and controllable. In Northern Ireland
County Court scale costs and the whole concept of County Court
procedure has successfully avoided some of the difficulties of
the equivalent English procedures.
There is however a fundamental difficulty in
imposing some kind of arbitrary limit on defence of criminal cases
which might mean that an assisted persons would not have the benefit
of the highest quality representation. Such a development would
be very regrettable and the only way to avoid such whilst refusing
the legal profession a blank cheque is the continuation of a process
of dialogue between a Commission and lawyers to establish scales
of costs in which all can have confidence.
A Public Defender system would ultimately be
perceived as the second class service of those who could not afford
something better and the best lawyers would be attracted to the
higher fees of the private sector. Even if this were not so then
you might well have a situation where the best lawyers would devote
more of their time to private practice and less to public practice,
so building up delays in the legal system. This is the perception
of some in regard to the present Health Service arrangements for
consultants.
Much has been said about the various ways of
resolving disputes and there are merits in a number of such solutions.
However, the lesson of the development of industrial law and the
Tribunal system must be borne in mind. It is now recognised that
a simple system has over the years become just as complicated
as a court system. The reform of County Court procedure in Northern
Ireland over the last few years has clearly demonstrated that
it is possible to reform existing structures to make them more
efficient and to meet the needs of all concerned.
(e) People should pay what they can reasonably
afford towards the costs of publicly funded legal services;
My proposal means that people will pay for such
services, but the method of payment will be determined by the
Commission rather than the client. Thus the administration will
be controlled by the Commission and the lawyers duty will largely
be confined to legal issues and not to the decision of the type
of funding required. In effect the present system of application
for legal assistance would largely continue. The present appeal
structure and reporting structures could either be enhanced or
continued as the situation requires.
(f) The system of remuneration for publicly
funded legal services should create incentives for effectiveness,
high quality and efficiency;
If a Charter Scheme is created it will undoubtedly
provide for full and prompt reporting to the Commission and the
client. The fee structure for lawyers could be determined by agreement
between representatives of the profession and the Commission.
Present structures of solicitors' firms which contain large reservoirs
of experienced staff which continue to be at the disposal of the
public and there would be no need to create new structures with
inevitable teething problems and increased bureaucracy.
(g) The structures for the administration
of legal aid must meet the standards of bodies charged with making
payments out of public funds;
It is not clear from the proposals set out by
government as to whom the Commission would be responsible. It
would certainly be the largest customer of Court Service and consideration
should be given to whether or not these two organisations should
be responsible to the one Minister. Within current devolution
arrangements it is a political question as to whether or not such
a Commission should be more accountable to local representatives.
Similarly the criteria for appointment of members of the Commission
are not clearly defined and in view of the fact that the Commission
would have very wide and serious obligations it should be quite
clear that it should be responsible in a defined manner to defined
bodies.
Again the White Paper is silent on any obligations
of the Commission to liase with lawyers, judges, consumer groups,
local representatives, Treasury, industry and trade union representatives
or the insurance industry.
(h) To ensure that the Reform of Legal Aid
is co-ordinated with various other reform proposals of the legal
system in Northern Ireland;
There are proposals for the reform of civil
justice, criminal justice and the Police Service and it would
be very important that any reform of legal aid would take account
of these proposals.
(i) To take account of the present structures
in relation to the regulations of the legal professions and the
administration of the Court;
Whatever system of regulation is determined
for both branches of the legal profession must have the respect
of the profession and the public. We have seen an attempt for
regulation of the financial services industry since 1986 which
has led to very large volumes of regulation and a consequent burden
of compliance costs which are ultimately borne by the consumer.
I think it is very important that the lesson of this attempt at
regulation by an outside body is borne in mind and that any Commission
would not eventually spend large amounts of limited resources
on drafting and implementing regulations which would not ultimately
assist the creation and maintenance of an efficient process.
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