Access to Justice (Northern Ireland)

Northern Ireland Grand Committee

Thursday 24 October 2002


[Mr. John McWilliam in the Chair]

Access to Justice (Northern Ireland)

2.44 pm

The Chairman: I remind hon. Members that the debate may continue until 4.30 pm.

2.45 pm

The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): I beg to move,

    That the Committee has considered the proposal for a draft Access to Justice (Northern Ireland) Order 2002.

This is my first appearance in this Committee, which nearly did not sit this afternoon, and I am delighted that you are in the Chair, Mr. McWilliam.

Today's debate is part of the consultation process on access to justice, which started four years ago. I shall go into some detail, but I hope to leave hon. Members with a clear sense of our direction and to take away their views as part of the consultation process.

I shall set out a little of the background to our reform of the legal aid system in Northern Ireland. When we came into office in 1997, the Lord Chancellor expressed concern about several aspects of the legal aid scheme both in England and Wales and in Northern Ireland. We undertook a review of the legal aid scheme in England and Wales, and that resulted in the Access to Justice Act 1999. In Northern Ireland, we were conscious that there had been no substantial reform of legal aid since the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981. That order was, even then, a consolidating order, and remains the legislation governing legal aid in Northern Ireland today. We therefore initiated a fundamental review of legal aid, and a major consideration has been the distinctive culture in Northern Ireland legal services. Hon. Members will be aware that 80 per cent. of firms of solicitors in Northern Ireland have only one or two partners. Practices tend to be generalist, meeting all their clients' legal needs, but they are often highly dependent on legal aid income.

Mr. John Taylor (Solihull): May I interrupt the Minister before she moves on from the subject of Northern Ireland solicitors. I dare say that she will have received communications and representations from the Law Society of Northern Ireland. I am, of course, not its spokesman, but it is not best pleased. Will she comment on its submissions?

Ms Winterton: I will certainly refer to both points made by the Law Society of Northern Ireland and the consultation process, in which it has participated.

The Bar in Northern Ireland is organised through the Bar Library, which is centralised and works in its own distinctive way. Hon. Members will also be aware

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that there is a well-established fixed costs structure in Northern Ireland, particularly in the county court.

The review of publicly funded legal services in Northern Ireland, which has given rise to the proposed legislation, has not taken place in a vacuum. In England and Wales, legal aid has been reformed by the Legal Aid Act 1988 and the Access to Justice Act 1999. Those reforms in England and Wales have provided a wealth of practical experience and knowledge, which has been used to inform the reform programme being considered for Northern Ireland. At the heart of that reform programme is a desire to deliver a modern, transparent and publicly funded legal services system that is flexible, but also takes account of local factors in Northern Ireland.

Rev. Martin Smyth (Belfast, South): The Minister refers to the experiences in England and Wales, but I understand that there have been some less happy experiences there. Have they been considered in drawing up the draft, or will they be considered in the final draft? The Minister referred to the peculiar situation of Northern Ireland, but is she aware that our erstwhile colleague Harold McCusker, during a debate in this place, suggested that when a solicitor was earning £250,000 a year from legal aid, he should become a public defender?

Ms Winterton: I was not aware of that particular comment. I believe that the changes in England and Wales have enabled us to examine exactly how some methods have worked, and how they can be translated to Northern Ireland. We have stated our intentions in certain areas, saying, ''This is how we are going to start off to see whether we can make a slightly different system work''. In many areas, which I shall discuss a little later, we have kept the power to introduce exactly the same system as in England and Wales if other systems fail, but we have also tried to ensure that the systems proposed fit into the distinctive culture. I hope that that will become clear during my speech.

Part of the reasoning behind some of our conclusions is an acknowledgment that, because there has not been substantial reform of publicly funded legal services for at least two decades, we must move carefully. We have sought to engage with interested parties throughout the reform programme, and I take the opportunity to pay tribute to all those who have participated in the consultation process. Since our Green Paper, ''Public Benefit and the Public Purse'' was published in 1999, there has been a whole series of meetings, including with representatives of the profession such as the Law Society. That process has been engaged, constructive and, in many cases, informed.

Some organisations would like the system to remain largely the same as at present, and some, including the Law Society, perhaps do not wish the reforms to go in quite the direction that we are planning. However, I hope that I shall be able to explain why we feel it necessary to move in that direction.

In the course of our consultation, we have had the benefit of the report from the Northern Ireland Affairs Committee, which was included in our White Paper, ''The Way Ahead''. We have also had the benefit of

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the Northern Ireland Assembly's very detailed report on the proposed legislation.

I stress again that I do not feel that an English model has been imported into Northern Ireland, and I shall give a couple of examples of the way in which we have tried to respond to the particular situation in the Province. As I said, at this stage our stated intention is to work to introduce a standard fee structure instead of the contracting system that applies in England and Wales. Having listened to the views of consultees, we are using the quality standard mechanism of a registration scheme and a code of practice. We have tried to take on board the points of view that have been expressed and to reflect them in our proposals.

The Northern Ireland Legal Services Commission, as the purchaser of legal services—at public expense, but for the public—must have the flexibility and opportunity to provide different services in different ways. The available options are largely the same as those in England, but we expect the commission to exercise them very differently in Northern Ireland. I stress that we want to leave such matters for the commission to advise on in due course. Some people have criticised the proposals, saying that all the detail should be worked out now, but we want the commission to operate very much within the Northern Ireland context so that it reflects in its work the particular needs of the Province.

David Burnside (South Antrim): As regards the establishment of the commission, I am sure that the Minister will agree that it needs independence and integrity. Following Sinn Fein-IRA's recent infiltration into the very heart of the Northern Ireland civil service and the Northern Ireland Office, will she give a commitment to enhance the integrity of the commission so that the standard of security vetting of its membership and staff will be of the highest Home Office standard, not of the low standard that presently exists in the Northern Ireland Office?

Ms Winterton: I take on board the hon. Gentleman's point. I can certainly confirm that we want to ensure that the commission is independent, but also that it has the necessary expertise to develop its policies—and to advise on ours—so that they reflect the needs of Northern Ireland.

The objectives for reform that we set out in the consultation paper are to put in place appropriate funding arrangements to secure for citizens access to the most appropriate means of resolving legal issues; to target resources on those in greatest need; to ensure that the overall cost of legal aid is affordable and controllable; to secure value for money from quality legal services; and to establish the most effective and efficient administrative structure to deliver publicly funded legal services. The proposed legislation sets the framework for meeting those objectives over the coming years.

I shall deal with some of the proposals in the order, starting with the establishment of a new body to administer publicly funded legal services. The Northern Ireland Legal Services Commission—a non-departmental public body—will assume responsibility for purchasing legal services in

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Northern Ireland from the funds set aside by Parliament for that purpose. Secondly, powers will be taken to regulate the cost of publicly funded legal services. We will move to establish a controlled budget for civil legal services and we will develop a range of all-inclusive standard fees that will cover work undertaken at public expense. Thirdly, a registration scheme and code of practice will be created. All individuals and organisations that provide services paid for by the commission will have to be registered with the commission and comply with a code of practice.

The proposed draft order also contains provisions that offer the potential for cases to be funded outside the civil legal services fund. In England and Wales, conditional fee agreements, which are commonly called no win, no fee agreements, are a well-established feature of the legal services landscape. The proposal for the draft order will allow those agreements to be introduced in Northern Ireland. The proposed legislation also contains a provision that would enable a private fund to be established to fund cases that might be excluded from the scope of the civil legal services fund.


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