Draft Access to Justice (Northern Ireland) Order 2003

[back to previous text]

Lady Hermon: I can glean much more information from the Minister when she leaves her script behind, so she must bear with me for interrupting her a fourth time.

Could the Minister expand on the point that she made about the commission setting priorities? Northern Ireland is a small jurisdiction of about 1.7 million people, yet paragraph 23(4) states:

    ''The Commission may fund advice and assistance by different means—

    (a) in different areas in Northern Ireland, and

    (b) in relation to different descriptions of cases.''

Why should there be regional variations in such a small jurisdiction?

Ms Winterton: It may be that there are different problems in different areas, and we want to ensure that the commission has flexibility of operation, if that is the case.

There are various ways in which legal aid will be available under the proposals. It may be made available through a standard fee structure, or through contracting. Contracting, for example, might be particularly applicable in an area in which there is no local advice bureau, or in which there is not the sort

Column Number: 007

of welfare advice available that there is in another area. We want to ensure that it is possible to identify such an unmet need, to have different mechanisms available and to ensure that there is sufficient flexibility to meet different needs. I will explain some of the different programmes later.

The heart of the reform programme is our desire to deliver a modern, transparent and publicly funded system of legal services, which is flexible and takes account of local factors. The order will achieve those changes by, first, establishing the new administrative body, the Northern Ireland Legal Services Commission; secondly by providing publicly funded legal services—[Interruption.]

The Chairman: Order. I find hon. Members' conversation most distracting.

Mr. Taylor: I apologise, Mr. Olner.

Ms Winterton: Secondly, the order will achieve those changes by providing publicly funded legal services through the creation of two types of service: civil legal services and criminal defence services. The order will also provide both for conditional fee agreements and litigation funding agreements; introduce new budgeting arrangements to fix levels of lawyers' fees; and introduce a registration scheme and code of practice for providers of publicly funded legal services.

Lembit Öpik: The Minister might address the matter later when she examines the detail of the order, but I should like to make a general point about the membership of the commission. I am pleased that the commission is being established, but have some concerns about the way in which it is being set up. At one point, it is said that the group should be representative of the community in Northern Ireland. Given that there are other groups in Northern Ireland, will the Minister assure me that ''representative'' does not mean Catholic and Protestant? After all, having five Catholic and five Protestant men in one group would not be representative of the community.

Ms Winterton: I hope that the hon. Gentleman will be reassured by my saying that the establishment of the commission will be in line with section 75 of the Northern Ireland Act 2000, which promotes equality of opportunity, and refers not only to people's religious beliefs, but to a range of issues, such as political opinion, racial group, age, marital status or sexual orientation.

The establishment of the Legal Services Commission will mean that statutory responsibility for the administration of publicly funded legal services will be transferred from the legal aid department of the Law Society to the Northern Ireland Legal Services Commission. It will be a non-departmental body, which is consistent with the approach taken in England and Wales at the end of the 1980s. In effect, the legal aid department of the Law Society will become the Legal Services Commission. As I said, the commission will undertake research to establish the need for legal services across the jurisdiction and the level of services provided. We want to make sure that

Column Number: 008

the commission uses that research to inform its decisions, which will then be taken by the commission and the Lord Chancellor on the provision of publicly funded legal services. That approach has been widely welcomed by consultees. Our plan is that the Northern Ireland Legal Services Commission will be established in September 2003.

The order also creates a new civil legal service, which will include a wide range of services such as advice, assistance and representation. The services that will be available will be developed in keeping with the changing needs of the community and identified by the commission. It is also true that, over time, needs may change, and it is important that the commission has the flexibility to reflect them.

Civil legal services will be provided from an allocated fund. When determining the size of the fund, the Lord Chancellor will take account of the research on the levels of need for legal services and the range of services required. Civil legal services will be funded through a variety of schemes, including contracts and the use of set fees for various types of work. We do not envisage that services will be provided routinely through contracts, but the Commission may wish to use that power in specific circumstances to provide, for example, representation for immigration and asylum cases or advice services.

At the heart of civil legal services will be a funding code. It will set different tests for different types of cases to enable the commission to determine whether an individual application merits advice or representation to be provided at public expense. The range of tests within the code will reflect the priority assigned to different types of cases and will ensure that priority cases receive funding. Under the order, the Lord Chancellor will set the Government's priorities for civil legal services. The priorities set for Northern Ireland will reflect local needs, but will also closely reflect wider issues, including the Human Rights Act 1998.

I hope that it will reassure members of the Committee to know that the funding code will be subject to detailed consultation. It and any subsequent changes to it, other than procedural changes, will be subject to parliamentary scrutiny through affirmative resolution debates.

Lady Hermon: Various codes are built into the order, but one thing intrigues me. The establishment of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland was one of the major achievements of the Belfast agreement. I am therefore amazed that those influential bodies, which have been given a particular remit, are not named in the order and do not appear worthy of consultation. That disturbs me greatly.

Ms Winterton: The Government have held detailed consultations with the Human Rights Commission; indeed, we recently had an exchange of views. I assured the commission that we would continue to consult on the various points that it had raised and reassured it about several that it had raised previously. I assure the hon. Lady that we will continue such consultation.

Column Number: 009

The order establishes a fund from which the Northern Ireland Legal Services Commission will provide criminal defence services, including advice, assistance and representation. It empowers the commission to use a variety of means, including standard fees, and the contracting and establishing of separate bodies, to provide such services.

The order empowers the court to grant a right of representation in relevant proceedings. It also empowers the court, not the commission—that was our original proposal—to determine the number and level of legal representatives. That significant amendment to the order reflects the approach that was argued for by consultees and during the Northern Ireland Grand Committee debate.

The creation of criminal defence services will remove the financial means test that is applied to legal aid applications. However, where a defendant has benefited from criminal defence services, the court will be able, in prescribed circumstances, to make an order for the recovery from him of part or all of the cost of his defence. Typically, that might happen in respect of convicted defendants who could afford to pay the cost of their defence in part or in whole.

The order provides for the establishment of a new scheme to demonstrate that the services provided are of a high standard, and that will involve creating a registration scheme and introducing codes of practice. Consultees argued for a unique Northern Ireland solution to the issue at an early stage, and we have listened to their views. There is no equivalent scheme in England, where contracts and franchises set out the standards required. The proposals are an indication of our resolve to deliver a Northern Ireland solution, and I hope that that is welcome.

All individuals and organisations that provide services that are paid for at public expense will have to register with the commission and agree to comply with a code of practice. Only firms and individuals who comply with the code will be entitled to provide publicly funded legal services. That will ensure that the same assurance exists in respect of legal services provided at public expense as exists in respect of many other provisions funded from the public purse.

I have carefully considered the views that have been expressed and the evidence that has been made available to me on the introduction of conditional fee agreements and litigation funding agreements. I have concluded that, on balance, conditional fee agreements, which are commonly called no win, no fee agreements, and litigation funding agreements should be options in the order. That is in response to consultees' arguments in favour of a contingency legal aid fund. However, I have expressly decided to exclude public funding for such agreements, and our policy is to encourage further consideration of the introduction of conditional fee agreements in Northern Ireland.

The order provides a new provision for setting lawyers' fees to enable all-inclusive standard fees to be developed for all aspects of publicly funded legal services. Standard fees are a well-established feature of legal services in Northern Ireland. As the legal profession is familiar with being remunerated under

Column Number: 010

standard fees—the county court scale costs system, for example—consultees argued for the development of standard fees over contracting. We listened to those representations, and the order provides for all-inclusive standard fees to be developed. It also makes provision for exceptional cases to be remunerated outside the proposed standard fee structure. However, we expect that the vast majority of cases will be remunerated by the fixed standard fee.

Contracting has, however, been retained as an option for the Commission to use in appropriate circumstances. I reaffirm long-standing assurances that before exercising these powers we will consult on the detail of the issues, and, where appropriate, we will include the use of pilot schemes. The combination of standard fees and projected volumes will bring greater predictability to the cost of providing publicly funded legal services. That approach will bring better forecasting of the global amounts required and budgeting and planning; it will also provide practitioners with greater certainty about the amounts that they can expect to receive for their services. We propose to develop systemically through consultation new set levels of fees, commencing with remuneration for criminal defence work.

Hon. Members will, I am sure, be interested to hear our ideas on implementation. I have made available a draft implementation plan to assist today's debate. It is a draft plan because it is vital that we work through our views with the commission before finalising the details. That is what the consultees asked us to do, and they have been assured that we will do it. It would be neither appropriate nor desirable to implement all the reforms to publicly funded legal services at one time. That is consistent with the clear message of the consultees. We needed clarity, and the establishment of the Northern Ireland Legal Services Commission is fundamental to the implementation of the reform programme. Reform of civil and criminal services will be taken forward when the commission has been established and the research has been done. My officials are engaged in detailed discussions with the Law Society, which the hon. Member for Solihull mentioned, to make the transition from administration by the Law Society to that of the commission as smooth as possible. That will happen in September 2003.

Throughout the reform programme we have been committed to consultation, and I hope I have illustrated the changes that we made as a result of it. Our commitment to consultation is undiminished. The commission will play a pivotal role in the detailed working out of the reform of publicly funded legal services, including research, analysis, consultation and pilot schemes.

There has been no substantial reform of publicly funded legal services in Northern Ireland for at least two decades. The time is now right for reform. We have moved carefully, and we have engaged with interested parties throughout the reform programme. I wish to say once again that we appreciate the support of all sides of the Committee for the proposals. The proposals will make a difference and will improve the

Column Number: 011

provision of publicly funded legal services in Northern Ireland. I commend the order to the Committee.

3.19 pm

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2003
Prepared 23 January 2003