APPENDIX 11
Memoranda submitted by the General Council
of the Bar of Northern Ireland
THE WAY AHEAD
BAR OF NORTHERN IRELAND RESPONSE TO COMMAND 4849
THE FUTURE OF LEGAL AID IN NORTHERN IRELAND
CIVIL LITIGATION
BACKGROUND
The Way Ahead is the most recent of a number
of papers provided by the Court Service and the Government in
relation to the future of the administration and provision of
Legal Aid in Northern Ireland.
The Bar of Northern Ireland has published two
papers in response to the Government process of review. We refer
to each of those papers and still reply on them.
The Way Ahead was published some time ago but
the Bar have been requested by the Northern Ireland Affairs Committee,
by letter dated 23 January 2001, to make a written submission
to the Committee's inquiry on the paper not later than Friday
23 February 2001.
This paper deals only with the question of changes
in relation to civil litigation. A separate paper will be provided
in relation to changes in respect of criminal legal aid.
PRELIMINARY COMMENTS
Again the Bar repeats that, subject to some
variations in emphasis, the Bar accepts the general objectives
of the Government as set out in paragraph 2.4 of the consultation
papers Public Benefit and the Public Purse.
We also acknowledge that Mr Lock accepts in
his foreword to the paper that it was correct to recognise that
the legal services landscape in Northern Ireland has a number
of distinctive features to that of England and Wales and that
the Government's commitment is to recognition of the Northern
Ireland legal services culture which is distinct from that in
England. This is consistent with the Government's position in
relation to Scotland where the administration of the legal aid
scheme is different to that in England and Wales.
It is right to remind ourselves that the cost
of civil legal aid in Northern Ireland has always been less than
that in England and Wales in all respects. The overall amount
has been much smaller and the cost per capita or per case is much
smaller. We did set out some of these figures in our previous
paper.
Therefore "the mischief" which the
Government is proposing to deal with may well be very different
in Northern Ireland.
We have one general point of emphasis which
we wish to make. We have already indicated that we are in favour
of any improvements in the system of administration of legal aid.
We have already accepted that it is right that the Government
should desire the best service for the public and that the public
would be properly catered for in a system of legal aid. We have
accepted that there should be proper monitoring of costs and there
should be properly qualified lawyers who act or practice in a
system of legal aid. But we also say that cost cannot be the only
criterion. We acknowledge that the Government wish to reduce the
cost to the public purse and we accept that that is their decision.
But we suggest that the emphasis should not be just on cost but
must be on service. We repeat the views that we expressed in our
previous paper. "We are sure that no revolutionary changes
will be imposed on Northern Ireland unless there is some good
reason for imposing the same and unless there is reasonable certainty
that the changes will not have an unfair effect on the Northern
Ireland public, or the administration of justice. The public should
have a right to resort to litigation and to go to court. No one
should be denied justice because of lack of funds. The aid given
should be comprehensive and adequate to cover all costs reasonably
incurred. Representation should be by a properly qualified lawyer
when such assistance is deemed necessary.
As far as possible a person should be free to
choose his lawyer who should then be paid for his or her work.
These are the principles embodied in the CCBE resolution of the
Hague of 25 October 1991 and they represent the views of the Committee
of Ministers expressed in resolution (78)8 of the European Community."
THE LEGAL
SERVICES COMMISSION
We accept the appointment of a new independent
administrative body to administer all aspects of publicly funded
legal services in Northern Ireland. We accept that this will be
an executive non-departmental public body and will be known as
the Legal Services Commission of Northern Ireland.
Subject to some variations in emphasis and approach
we accept the thrust of chapter 4 of the paper The Way Ahead in
relation to the powers of the LSC.
We repeat our views that we totally disagree
with the proposal set out in paragraphs 30 and 46 of The Way Ahead
in relation to the system of appeals. What is described as a system
of appeal is not such. It is a system of review. We believe that
applicants should be entitled to an appeal against refusals and
not a review. We do not agree that the test on appeal should be
whether or not the original decision made was reasonable in the
circumstances taking account of all available evidence at that
stage. The test of an appeal should be that it is fair. It should
accord with proper principles of natural justice. We do not accept
that it can be right that if there is clear evidence justifying
the provision of legal aid it cannot be provided on appeal.
We also do not agree that appeals which are
allowed would simply be returned to the LSC for reconsideration.
The appeals body should be a body which has a legally experienced
practitioner sitting on it and the appeal body should be able
to make a decision as to whether to grant or refuse the appeal.
We do not agree that the overall decision in effect would be simply
made by an administrative body with no "real control"
over that body in practice. We do not agree that because the LSC
is responsible for providing resources that it can properly take
into account a fairer or more objective standard of looking not
just at its financial budget but also at the fairness of the case
from the point of view of the applicant. This in effect is a partly
legal decision and it should be decided on proper legal grounds
and not just financial grounds.
QUALITY
We accept that legal services bought with taxpayers'
money should be demonstrably of a consistently high quality.
We should say in passing that we have not seen
any evidence that the quality of service in Northern Ireland in
this field has been poor. But no system is perfect and we agree
that there can always be improvement.
So we accept that all legal service providers
wishing to offer legal services at public expense should be required
to register with the Legal Services Commission. We accept that
there should be a code of practice which will establish standards
to be satisfied by the provider. We accept that the providers
registered with the Commission should be required to comply both
corporately and individually with the code of practice.
We accept that there has to be monitoring by
the Legal Services Commission.
We do not think that the test of ability should
be based on whether cases are won or lost. We wait to see the
terms of the proposed code of practice. We note that a working
group is to be established to consider the quality standards to
be introduced. We note that much of the monitoring will relate
to accessing solicitors' offices and auditing and we acknowledge
that.
We see the reference to the use of salaried
lawyers in paragraph 37 of the Government paper. Insofar as the
Bar of Northern Ireland is concerned, we stand by the view that
insofar as litigation is concerned the public still need to retain
the right to have independent counsel. We still consider that
through our history to the present date there is a need for an
independent and fearless Bar giving service to all sides of the
community and to plaintiffs and defendants alike.
ENTITLEMENT TO
LEGAL AID
1. We have already expressed our views on
the suggested introduction of Conditional Fee Agreements (CFAs).
We, with others, did suggest that the establishment of a contingency
Legal Aid Fund (CLAF) should be considered. We are co-operating
with the Lord Chancellor's Legal Aid Advisory Committee in its
preparation of a report on this matter. We have already attended
before that Committee and are proposing to put a paper before
it.
2. We have already expressed our views on
the introduction of funding for alternative dispute resolution
(ADR) mechanisms. We have already indicated that we are not against
that. What we have also expressed are cautionary notes about the
likely success of such mechanisms and the danger of simply moving
funding from legal aid to funding for ADRs with no great benefit
to the public.
3. We do not propose to rehearse our earlier
papers in relation to what aspects of legal aid assistance should
be retained. We have already highlighted that in relation to a
number of personal injury litigation claims, we cannot see how
alternative solutions are viable. We have referred to professional
negligence cases, medical negligence cases, litigation against
organs of the State, representation of defendants, housing claims,
claims for judicial review, and matrimonial claims.
We will discuss below the issue of a statutory
funding code but at the moment we still see that the preferable
test for granting legal aid should be based on a financial and
merits test.
We take issue with the sentence in paragraph
27 which implies that this is not a rational way of spending public
money. We believe that it is. We are not against any tightening
of the means test to avoid abuse. We are not against tightening
of a merits test if it is considered that the present test is
too loose, eg, see one possible draft test in paragraph 14.5 of
the submission by the Lord Chancellor's Legal Aid Advisory Committee.
But we again say that there is no evidence from research that
there has been excessive abuse of the granting of legal aid in
the past and we note the general findings and comments of the
Legal Aid Advisory Committee in its overall paragraph 14 of its
submission.
COSTING
1. We have already accepted the Government's
desire and need to monitor and control expenditure.
2. We have already accepted that the LSC
should be the body to carry out this exercise.
3. But we also repeat our views that we
have seen no clear evidence of a mischief or abuse in relation
to civil fees. We have quite a tight system of checking on fees
in Northern Ireland.
(a) In the County Court (the equivalent of
the English fast track) we have set scales of fees. These are
prepared by the County Courts Committee composed of judges, civil
servants and practitioners. We have not seen these challenged
as small. In fact the profession has been saying that they are
very low in comparison with England and need variation.
(b) We have a guidance scale or "going
rate" scale in the High Court suggested by the Bar Council.
(I am referring to Bar fees only). The Taxing Master has accepted
these. The Civil Justice Reform Group under the chairmanship of
Lord Justice Campbell in its report has noted these fees without
criticism at 9.41 et seq. of its report.
(c) The Taxing Master is an independent officer
of the High Court who has been taxing fees for many years.
We are not against some guidance rate with an
attempt to have standard fees. We are not clear yet what "a
best value" approach will mean. We do not see a reason for
suggesting that existing fees should be reduced. If the public
are to receive a fair service they are entitled to have fair legal
representation and legal representatives to be attracted to the
scheme should be fairly paid.
4. However, we will wait to see what is
suggested in the funding code. We do not fully understand the
criteria which will be set out in this code at this stage. We
note in paragraph 46 that the LSC will draw up the draft code
"taking account of directions issued by the Lord Chancellor
of the Government's priorities (and including the availability
of sources criterion)". We admit that we are wary of this.
We do not accept that there should be a capping of budget at all.
We believe that there is no reason for capping of budget having
regard to the history of the cost of legal aid in Northern Ireland
to date. We accept there should be ringfencing between the civil
budget and the criminal budget. It is not for us to enter into
the political debate as to how money should be spent between education,
medicine and legal assistance etc. But we emphasize that the present
personal injury civil budget has not had a high net cost and
the costing to date per case has not been excessive. We have already
given in our previous papers average costs. Lord Justice Campbell's
Reform Group noted the level of expenditure per head of population
in Northern Ireland at £7 and not 9p as compared to £16
and not 2p in England and Wales and the average cost of civil
Legal Aid for a claim in Northern Ireland is £929 as compared
to £2,684 in England and Wales in 1996-97. We come back to
our theme that whereas there must be checking and monitoring that
capping can be unfair to the public generally. So we accept tightening
up but not in terms as suggested in The Way Ahead. But we shall
wait and see what the funding code sets out and will consider
it and discuss it in due course.
5. We have already accepted that there should
be some attempt at a going rate. We note the paper suggests that
there can be allowance for exceptional cases but paragraph 64
implies that to come outside the standard fee you have to have
a really, really exceptional case. The words used are "truly
exceptional". We do not yet endorse this approach. We would
like to see what words would be used in due course. We do not
agree that there will not be cases which should come outside the
going rate without having to be "truly exceptional".
If there are very difficult points of law in a case, or if there
are very unusual or difficult facts, or if the case is a test
case, or if the case lasts a much longer time than the normal
then we consider that these are the type of situations where a
standard fee would not be sufficient. We would not like to have
an argument where someone agreed that they are well above the
standard case but they are still not "truly exceptional".
To date the Taxing Master has been the person who has made judgments
as to when a case should go above the standard rate or not. In
his field there is a reasonably well developed body of law giving
guidance on these subjects. Each case can turn on its own facts
and on the work involved. We still believe that very narrow lines
of division between standard fees and exceptional fees would not
necessarily meet the justice of costing in many cases. We do not
agree that a test based on capping or "resources available"
can be fair to the practitioners or to the public.
We also consider that it will not always be
possible to assess at the outset of the case whether the case
is a high cost case.
We agree that the solicitor should apply at
the earliest opportunity to the LSC setting out when a case is
likely to be high cost or not.
But we believe that this is something which
can be covered by the LSC in its monitoring of the cases. We have
already accepted that there is an ongoing duty to provide the
LSC with all information that is relevant to the classification
and progress of a case and decisions should not have to be made
at the outset in relation to this aspect of costing.
6. We refer to paragraph 55 of the report.
We are not entirely clear how standard fees will be measured by
"the general level of competence of legal representatives
undertaking the work". If the legal representative is properly
registered and fulfils the code of practice then we are not yet
clear why one representative should receive more funds than another.
We believe that the test of a fee should be an objective one as
to what is a fair and reasonable fee having regard to the issues
in the case, the difficulties in the case and the work to be done.
CONCLUSION
1. The introduction of the LSC to administer
all aspects of public funded legal services in Northern Ireland
is accepted.
2. We accept that the introduction of that
body will modernise the administration of the Service.
3. We accept that we need registration of
persons applying the legal aid system and a code of practice.
4. We accept that the LSC can review the
whole issue of who receives legal aid and on what grounds they
receive legal aid, and monitors the progress of legal aid cases.
5. We accept that the Government is drawing
up a draft funding code and its aim is to have some kind of standard
fees. We are not against this. We have certain reservations as
to how this will be applied and wish to reserve our discussion
on that.
6. We believe that the ringfencing between
civil legal aid and criminal legal aid will highlight that the
cost of civil legal aid in Northern Ireland is not excessive and
is consistent with the service that is necessary and that is given.
7. We are in agreement with the principle
that the Government should have a going rate of fees for legal
aid work. We want to see the fine tuning of this. We are not persuaded
that capping is necessary or that the test of resources should
be the real test of what should be the going rate fees.
8. We await any proposals from the LSC in
relation to pilot schemes, a draft funding code, or other schemes
which they are to carry out under paragraph 46 of the Government
paper.
THE WAY AHEAD
BAR OF NORTHERN IRELAND RESPONSE TO COMMAND 4849
THE FUTURE OF LEGAL AID IN NORTHERN IRELAND
CRIMINAL LEGAL AID
BACKGROUND
This paper deals only with the question of changes
in respect of Criminal Legal Aid proposed in the Way Ahead, a
paper published some time ago. This is the response of the Northern
Ireland Bar to a request by the Northern Ireland Affairs Committee
by letter dated 23 January 2001.
1. PRELIMINARY
COMMENTS
The Bar was pleased to note the Government's
continued commitment to fairness within the criminal justice system,
in particular that suspects and defendants could state their case
on an equal footing with the prosecution and that Defendants could
have confidence in and are assured an effective participation
in the process (paragraphs 12.1(d) and (e) of the consultation
paper headed Public Benefit and the Public Purse. The Bar also
noted the Government's commitment to honouring statutory and international
obligations in relation to the provision of criminal defence services
(paragraph 12.2). The Bar affirms its commitment to those aims
which are consistent with providing a quality legal service which
is value for money. It is the strong contention of the Northern
Ireland Bar that as far as criminal justice is concerned, the
existing criminal legal aid arrangements achieve those aims.
The Bar further wishes it to be made known to
members of the Northern Ireland Affairs Committee that while many
things are complained about in Northern Ireland, there has never
been any substantial public complaint about the quality of legal
services provided in the criminal justice system and indeed the
quality of legal services provided in the criminal justice system
and indeed this jurisdiction has been well served through the
past troublesome and difficult 30 odd years with a notable absence
of public outcry about any alleged miscarriages of justice. It
is notable that in the Government's own comprehensive review of
the criminal justice system in Northern Ireland published in March
2000, the Review body emphasised that accessibility to justice
regardless of ability to pay in the criminal justice system is
an important principle and if the right to legal assistance is
to be effective, it must be provided free to those who do not
have sufficient means to pay for it (paragraph 3.58, page 44).
Further, the Review noted the aforesaid consultation document
and emphasised that the provision of publicly funded criminal
legal services is a necessary function of a free and democratic
society governed under the rule of law and is a means of ensuring
fairness and confidence in the system and further referred to
article 3(3)(c) of the European Convention on Human Rights recognising
the right of free legal aid provided it is in the interests of
justice for it to be granted. The Review further emphasised the
principle of legal aid in that suspects and defendants can state
their case on an equal footing with the prosecution and reminded
the Government that the European Court has developed this principle
to require that the defence have equal access to material information
and expert assistance before and at the trial. In particular the
Review goes on to state that it has been established that the
defendant must be able to secure attendance and examination of
experts on his or her behalf under the same conditions as apply
to experts against him or her and that that means that legal aid
provision must enable the defence to draw upon experts of equal
standing to those called for the prosecution (see paragraph 3.59).
The Criminal Justice Review carried out widespread public consultation
in respect of all aspects of its terms of reference and did not
note any public concern about the quality of legal services to
date despite the enormous difficulties and stresses upon the system
and the lawyers operating within that system over the last 30
years.
As far as criminal legal aid is concerned, the
Northern Ireland Bar is of the firm view that the present arrangements
provide a very high degree of accountability and transparency
within a system that is now staffed by a highly efficient number
of people operating a system that is almost entirely computerised.
Accountability clearly exists within the system of supervision
and certification operated under the auspices of the Appropriate
Authority and further in terms of supervision and review by the
Taxing Master and ultimately by the High Court. The Bar stresses
its commitment to helping implement any administrative changes
which would make this system more efficient and is of the firm
view that Cm 4849 is a set of Government proposals which, as far
as criminal legal aid is concerned, is a direct response to a
rise in expenditure between 1990-91 and 1997-98. The Bar states
firmly that such a rise is clearly attributable to a large number
of factors including the fact that it is only since 1990-91 that
criminal practitioners at the Northern Ireland Bar were in receipt
of fees equivalent to their English and Welsh counterparts, thus
explaining to some degree the sudden growth in expenditure. A
large number of other matters imputed into this position, for
example the extensive number of defence experts now engaged and
further the much more complex matters involved in criminal trials
over very recent years. The Bar of Northern Ireland believes that
a study of the reasons for that rise should have been undertaken
before radical changes were proposed for criminal legal aid in
this jurisdiction and is of the view that there are so many vulnerabilities
and contradictions in the Government's present proposals that
the only conclusion that can be drawn is that said proposals are
a thinly disguised cost cutting exercise which will ultimately
impinge upon the quality of legal services available to defendants
in Northern Ireland. The Government fails to recognise in its
proposals the peculiarly difficult and at times life threatening
situation that criminal defence lawyers are presented with on
a regular basis in this jurisdiction, both over the last 30 years
and for the foreseeable future, and if there is any dilution of
the quality of the legal services provided as a result of these
present proposals (which the Bar feels is the inevitable consequence
of same) then it is the citizens of Northern Ireland who will
ultimately suffer most. It is somewhat of an irony that while
Northern Ireland has been the most difficult of the UK jurisdictions
in which to practice over the last 30 years, that official figures
show that criminal defence pro-rata have consistently reflected
up to 50 per cent better value for money provided by the Northern
Ireland practitioner. We would refer the Northern Ireland Committee
to the history of the costs of Criminal Legal Aid in this jurisdiction
at pages 3, 4, 5 and 6 of the Bar's Submission on Criminal Legal
Aid to the Public Benefit and the Public Purse consultation paper
released on 14 June 1999. However, the Bar has no objection to
any proposed change of administration of the present system and
will assist and co-operate with same in every possible way.
2. A CRITIQUE
OF GOVERNMENT
PROPOSALS ON
THE FUTURE
OF CRIMINAL
LEGAL AID
IN NORTHERN
IRELAND
(i) Forward
In the Forward to the present proposals written
and signed by David Lock, Parliamentary Secretary, Lord Chancellor's
Department, he states that "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".
The Bar of Northern Ireland says that the present
system introduced as recently as 1990-91 into this jurisdiction
was transparently a local solution to a local problem accountable
with a civilian input overseen at various stages and ultimately
subject to certification by the Taxing Master and review by the
High Court.
Further, Mr Lock goes on to discuss the establishment
of a new independent body to administer Legal Aid (The Legal Services
Commission) and indicates that the Government is "determined
to take effective control of the levels of public funding allocated
to the provision of legal services and to ensure that the available
funds are targeted on meeting the real needs of the most vulnerable
in society".
The Bar states that one of the most vulnerable
persons in society is the person who has been indicted by the
Government and is the subject of a serious criminal charge facing
a prosecution system that has greater resources, more and better
experts, more and better forensic evidence and more and better
access to legal expertise on an international basis. If the expenditure
from the public purse is "demand led" in the sense of
being dependent upon the number of persons apprehended and the
offences charged, it is also clearly "prosecution led"
in the sense that the defence must prepare and have resources
to match the resources which the prosecution chose to put in to
any particular case. The Bar says that the present proposals with
their emphasis on control of the levels of public funding allocated
to the provision of legal services to the defence is quite inconsistent
with the principle of equality of arms now enshrined and incorporated
in domestic legislation.
Mr Lock goes on to envisage in his Forward a
service which is of a "quality" which is "independently
monitored and of a consistently high standard".
The Bar is of the view that as far as Criminal
Legal Aid is concerned, the present system fully enshrines these
aspirations.
CHAPTER 1—EXECUTIVE
SUMMARY
(i) The Bar notes the Government proposal that Commissioners
on the Legal Services Commission of Northern Ireland will be drawn
from a "range of backgrounds including financial, business
and legal services". Further, it appears that the proposal
is that said Commission will have powers to establish panels of
lawyers to be co-opted as sub-Committee members of the Commission
though it doesn't appear that such co-option would be relevant
to criminal legal aid.
The Bar is of the view that such a Commission
would have therefore little or no insight into the complexities
of a criminal case, and in particular a serious one, and therefore
would be ill-equipped to make the decisions that are expected
of it in the Government proposals in this document.
(ii) It is notable that there is some considerable
emphasis on cost control measures in this chapter. It is further
notable that the Government proposes a range of all-inclusive
standard fees after consultation with legal service providers
but that ultimately said fees are to be set by the Legal Services
Commission who as stated have little or no knowledge of criminal
case work or case load. Their approach is required to adopt a
"best value" approach and it is made abundantly clear
that "existing fees will not necessarily be the starting
point for fixing standard fees". It seems quite anomalous
that what is paid to defence lawyers as reasonable remuneration
for "work done" since 1990-91 is not necessarily now
considered to be even a starting point. Further the Government
proposals proposes that "mechanisms will be developed to
allow cases to be certified as `exceptional'". Presumably
it is intended that the Lord Chancellor will direct on this issue
and at present there are absolutely no criteria set out. It is
noted that this term changes to "truly exceptional"
and to "complex" and to "high cost" as the
report progresses indicating in the view of the Bar quite imprecise
budget driven thinking on this issue.
Finally within this chapter, it is envisaged
that the Legal Services Commission will be empowered to establish
a salaried lawyer structure which is in effect a public defender
system with all its known failings in other jurisdictions.
CHAPTER 4
It is stated that all of the Committee were
in favour of the responsibility for administration of Legal Aid
being moved from the Law Society to an Legal Services Commission.
This is not the case as far as the Bar is concerned.
With respect to the proposed Legal Services
Commission the Bar wonders how finance and business skills relate
to the assessment of the value of the role of the criminal defence
practitioner in his criminal cases in Northern Ireland.
It is notable within this chapter that the Legal
Services Commission is responsible for, amongst other matters,
agreeing and monitoring "exceptional" cases which fall
outside the standard fee regime against the established criteria.
No established criteria are set out in this document and it is
alarming to note that Commissioners with no legal expertise whatsoever
are to be assigned this role. This is an alarming proposition
and is almost certain to lead to considerable anomalies.
CHAPTER 5—COST
ISSUES
On the one hand the Government proposes that
the Criminal budget will be essentially demand led but then sets
out various measures which are designed to establish clear budgetary
control and are undoubtedly geared to cost cutting what the Government
perceives to be an over-generous legal aid budget at present applicable
in criminal cases. The Government's true intentions are reflected
in the introduction of standard fees which are geared to amongst
other things, the "availability of resources" and "public
sector comparables". The Government clearly concedes that
remuneration for criminal legal aid will not be guided by "other
private rates" or "the income lawyers may reasonably
expect to earn from other sources". The Northern Ireland
Affairs Committee should understand that in fact the Government
is clearly proposing not to pay the going rate that a lawyer might
reasonably expect to receive from the private sector and a form
of "capping" consistent with other professionals working
within the public sector is to be applied along with a threat
to initiate a salaried lawyer system (public defender). The fact
is that the able barristers who are used to doing criminal defence
work in this jurisdiction with all its associated sensitivities
and enormous difficulties, if not risks, will no longer be available
as the present remuneration described by this Government as "reasonable"
will not be available under the standard fee system proposed.
The Government concedes indeed in this chapter that the inevitable
consequence of establishing standard fees is that they will not
be the same as those which a private client would pay. While the
Bar welcomes the Government's indication that it will develop
the levels and structures of the standard fee models and in doing
so would welcome the input of the profession to this process,
guided of course by the clearly restrictive principles set out
in the paper, it also goes on to say that the scale fee approach
is demonstrably a Northern Ireland solution for a Northern Ireland
problem.
What the Bar asks is quite simply what is the
problem? If the problem is the increased legal aid expenditure
in recent years, the Bar would refer the Northern Ireland Affairs
Committee to its previous submission to the Government on this
issue (enclosed[15])
and would be quite happy to present oral evidence in detail on
all the issues therein. It will only be in "exceptional"
cases that standard fees will not be applicable and the Bar would
wish the Northern Ireland Affairs Committee to know that an extremely
crude, broad brush, ill thought out and ill refined approach is
proposed for a perceived problem in Northern Ireland. The Bar
is of the view no proper attempt to analyse the present position
peculiar to Northern Ireland with all its inherent variables has
been made by the Government and instead proposed an approach that
will divest the vulnerable in the Northern Ireland Community of
quality legal defence. The Government well knows that "value
for money" means it will get what it pays for, and these
proposals are abundantly clear that the Government intends to
be utterly restrictive in its application of the criminal legal
aid budget in the future. The emphasis of its report is clearly
the controlling and budgeting of legal aid expenditure in the
future at the expense of the inevitable consequence of dilution
and loss of quality. Indeed, nowhere is this more highlighted
than at paragraph 74 where it is stated that the proposal of the
Government is that courts will not continue to have the power
to decide on the number of counsel or advocates allowed, but that
that this has now to be transferred to the Legal Services Commission
with criteria set out by Lord Chancellor's directions. The Bar
anticipates extremely restrictive criteria and reminds the Northern
Ireland Affairs Committee once again that members of the Commission
who have no legal experience whatsoever will be making decisions
fundamental to the defence of the citizens of Northern Ireland
unfortunate enough to be charged with a criminal charge and apparently
not be accountable for same on any statutory basis.
CHAPTER 6—QUALITY
STANDARDS
It is the strong view of the Bar that the Government
proposals in respect of criminal legal aid would inevitably result
in a substantial lowering of the quality of legal services provided
and that, in the Northern Ireland context, this would result in
a reduction in public confidence in the system which will have
far reaching effects. The Bar is keen to ensure quality control
consistent with its professional responsibilities not to allow
intrusion of confidentiality.
The Government provides no evidence whatsoever
that the services at present being provided are not of the highest
quality. There has been no complaint from an extremely critical
population during the course of the Criminal Justice Review over
a period of approximately two years of its life. The Appropriate
Authority with the present system of review by the Taxing Master
is highly accountable and the present system, we wish the Northern
Ireland Affairs Committee to know, is working well. The Bar has
committed itself to helping bring about any improvement which
can be made in the present arrangements at all times.
Further the Bar has committed itself to the
Government's aim of getting value for money in the context of
providing a quality legal service and urges that research be undertaken
to establish a breakdown of criminal legal aid costs since 1990-91
wherein we are sure it can be shown to the Northern Ireland Affairs
Committee that "value for money" has been provided by
the Criminal Defence Bar in the context of the Northern Ireland
defendant's right to a fair trial and "equality of arms"
with the prosecution and to the high degree of satisfaction with
criminal services which appears to exist in Northern Ireland.
An independent and fearless Bar in Northern Ireland is the guarantee
of quality and not some form of registration or code of practice.
Again the Bar would be keen to address the Committee on this issue.
Any monitoring of its cases by members of the Commission will
not be acceptable to the Bar. The reasons are strikingly obvious.
CONCLUSION
At paragraph 84 reference is made to "shortcomings
inherent in the existing legal aid system in Northern Ireland".
Since the Government has made no reference to "quality"
then it is assumed that this is a reference to budgetary concerns
and the Bar emphasises that the proposed changes are in the context
that no complaints of quality have been presented to or by the
Government in this paper and that "value for money"
has always been provided as indicated by the most fundamental
figure of all, namely the comparative "pro-rata" figure
presented in annual Legal Aid Reviews carried out in the relevant
UK jurisdictions.
At paragraph 86 the Government eschews the importance
of targeting public funds towards cases of greatest merit and
yet the inevitable consequence of these proposals is that defendants
in serious criminal cases are to be divested of quality legal
service because financial cut backs and restrictions are undoubtedly
to be applied to a criminal legal aid system which, if it is to
properly represent the vulnerable of the community in terms of
"equality of arms", then it is of necessity to be demand
led in order to meet "prosecution led" publicly funded
prosecutions not subject to the same analysis or restrictions.
Ultimately the quality of the system will suffer and lead to inevitable
miscarriages of justice in the future. As clearly emphasised at
paragraph 88, a rigorous control of the cost of legal aid is to
be applied. Most reprehensible and insulting to the Defence Bar
in Northern Ireland is the reference at paragraph 90 (penultimate
paragraph) by the Government of its commitment to "reform"
of a system that we say is not broken and the implicit threat
that if the good will of the profession is not available towards
the proposals in its paper for case and cost control, then the
Government will once again look at the prospect of having to invoke
"the alternative of exclusive block contracting", retaining
this threat on the Government's "default agenda" should
agreement not be forthcoming on its scheme set out in its Decisions
Paper. The Bar would like the Northern Ireland Affairs Committee
to make of that implied threat what it will as an indication of
exactly the mischief lying beneath within and indeed above all
aspects of the Government's proposals for the future of legal
aid in Northern Ireland as set out in Cm 4849.
22 February 2001
15 Not reported. Back
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