Official Report: Minutes of Evidence

The Chairperson (Mr Ross): Good afternoon. I welcome Mark McGuckin, deputy director in the public legal services division; and Deirdre McDaid. We have a Mark McGuckin and a Mark McGuicken — very confusing. I thought that was a typo in my notes. We have two for the price of one; that is even better, I am quite sure. The session is being recorded by Hansard and will be on the website in due course.

When you are ready, you can brief us on the results of the consultation. We will then open it up to members for questions.

Mr Mark McGuckin (Department of Justice): Thank you very much, Chairman, for your introduction and for the opportunity to brief the Committee. First, I would like to say something about the wider context in which we are briefing the Committee today, if I may.

The demand for legal aid exceeds the available budget, and the Department faces a significant pressure in the next year. Steps have been taken to reduce fees paid in respect of legal aid cases, and further work is being done in that area. In addition, forms have been implemented to ensure that representation afforded through legal aid is proportionate to the complexity of the issue and the court tier. However, even when those reforms are fully implemented, demand will still exceed the available budget.

In October, the Department launched a consultation on a range of options which, if selected and implemented, would lead to a reduction in the scope of civil legal aid. In bringing forward the options, we were keen to ensure that they had minimal impact on access to justice. For that reason, we concentrated on areas where sources of advice and assistance were already available and where money or property was at the heart of the dispute so an alternative source of funding could be made available. We also put forward some options around restricting or removing private family law.

We had a significant response to the consultation. Overall, 27 contributions were received. We have considered the responses carefully, and they have influenced the development of our proposals. However, the proposals have also been influenced by the more challenging financial environment, and some additional proposals have now been added.

The responses included many comments on the impact that a series of changes has had in England and Wales. We have sought very clearly to learn from the experiences there and to develop our proposals in a way that will avoid the challenges that have emerged. Our proposals for reform are, therefore, much more proportionate.

At this stage, I would like to make one point very clear in order to address some potentially misleading commentary. It is not the intention to remove any aspect of public law children order proceedings or private law children order proceedings from the scope of legal aid. There has been some publicity around this issue, and it is important to clear it up. However, we believe that there is scope for making some important changes to private order children's proceedings, which will help to reduce costs.

The consultation highlighted that there were occasions when legal aid may be used to pursue actions that a privately paying party would not be prepared to pursue. That has also been highlighted to the Minister on many occasions by defendants who are not receiving legal aid. That can manifest itself in a range of repeat applications for relatively minor issues. Therefore, we now propose to tighten up on the merits test to minimise the opportunity to use legal aid as a means of perpetuating and exacerbating disputes that, in reality, should be agreed outside the court setting. However, in doing that, legal aid will still remain available for all aspects of family law.

The consultation set out options for the rationalisation of the green form scheme, which is effectively an open-ended opportunity to seek legal advice. The rationale was that, for many years, alternative sources of advice were available, so effectively there was duplication in provision. We have adjusted the range of issues that will remain in scope as a result of the responses to the consultation. The key areas that will be retained include complaints against Government bodies, the Mental Health Review Tribunal, asylum and immigration, special educational needs (SEN) and children order issues. We will keep the impact of that under review.
The consultation sets out six areas of civil legal aid that were primarily concerned with recovering damages in one form or another. Those range from contract and consumer issues through to inherence and probate issues. In some areas, large amounts of public money have been spent for apparently little gain. We recognise that those areas can be high priority for the individual. However, on balance and in light of the pressure on the legal aid budget, we propose to remove those from the scope of green form and civil legal aid.

The award of legal aid is currently subject to a merits test, but the application of the test is not recorded. We now propose that the green form should be amended to provide details of the outcome of the advice provided. In addition, in other areas of civil legal aid, we propose that an analysis of prospects of success and, as appropriate, cost benefit, should be conducted. The intention is that the decision-making process for public funding should reflect the decision that a privately paying client using their own resource would make.

In response to the ongoing pressures on the legal aid budget, we are proposing two additional areas of reform. Those are ancillary relief in divorce and relationship breakdowns and low-level injunctions. Ancillary relief is about helping to resolve property and finance-related issues. Clearly, property is at the core of the dispute, and sometimes the dispute can be over very minor assets.

In bringing forward proposals, we will consider whether the court can facilitate the release of funding from the estate to facilitate the action. We did not put forward specific options on injunctions, though we did note some issues. We now propose to remove from scope low-level cases, which are often settled on agreed terms. Legal aid would be retained for more serious cases, or where there is a risk of violence or the threat of violence.

Mr Chairman, this is a broad outline of the proposals for reform in each area, and we acknowledge that they will involve a significant amount of change. It is our intention now to work up each individual policy area into a specific and detailed proposal. In doing this, we will wish to consult on the detail with the profession and other relevant stakeholders before coming back to the Committee with specific implementation proposals. In some areas, the proposals will require legislative change using the draft affirmative procedure, while others can be delivered through guidance. In each case, we will bring the detailed proposals to the Committee. As part of this work, we will also undertake equality screening exercises and, as appropriate, full equality impact assessments.

This has been a lengthy consultation process with a significant response. Many of the responses were opposed to any reform of legal aid that would reduce the areas for which it is available. However, the demand exceeds the available resource. Our proposals will seek to protect the most vulnerable and to ensure that legal aid is available when there is no other option. We have sought to protect family law issues and to provide support where alternatives are not available. I am happy to take any questions.

The Chairperson (Mr Ross): Thank you very much. Your final point that demand exceeds resource is something that we are all very aware of, and we understand that the Department is in a very difficult position with the rising cost of legal aid and having smaller and smaller budgets, which could well get much worse in the months ahead. However, we also have a responsibility around access to justice and ensuring that the most vulnerable in society, who need access to legal aid, are catered for. That is something that members may want to explore during the questioning. I ask you to start off by reminding the Committee what the estimated annual savings would be if your proposals are adopted.

Mr McGuckin: All of these proposals? I have not brought with me a full breakdown of each of the savings, but I will run through each of the areas in the consultation document. We estimate that savings around low-level injunctions could be in the region of £1 million per annum, but much would depend — in all these cases, it is demand-led and so depends on what comes up in any particular year, but the estimate is that it would be somewhere in that region. We estimate that about £5 million is currently spent on ancillary relief proceedings and marriage and family breakdown. Some of those issues are linked with others aspects, so it is a maximum of £5 million from that area if it came out. Then there are the reductions in terms of the private law children orders and tidying them up. Nine million pounds per annum is spent on those issues. We would seek to tidy up the repeat applications and put in some more control. We have not yet estimated the exact savings from that because we have to work out precisely how many are involved. We reckon that taking the green form issues out of scope will yield between £500,000 and £600,000 per year. The measures before you today will save in the region of £7 million or £8 million in total.

The Chairperson (Mr Ross): I appreciate that it is demand-led and that it is therefore difficult to provide a definitive answer. Based on the last number of years, how many fewer cases would fall in the scope than at present under the proposed changes?

Mr McGuckin: We would have to look at that in each individual area, and I think that it would be most appropriate to address that in the detailed papers that we will be bringing forward to you. We have some figures. For example, we reckon there would be about 4.500 applications going through the green form scheme, which would no longer be within scope. The other areas will depend on precisely how widely the changes are implemented.

The Chairperson (Mr Ross): I was not on the Committee in June 2014 when you were here, but I noticed, in reading through the Hansard report, that you had responded to a question from Mr Wells by saying that we need to look at the impact and outcome of what has happened in England and Wales. Since then, we have had the benefit of the PAC report, which was published last month, and there is also an Audit Office report, which was published in November. Have those two reports in any way changed your thinking about how you would propose to address reform?

Mr McGuckin: I do not think that they have changed the thinking as such, but they have certainly influenced the decisions that have arisen from the consultation. When we put the original consultation paper to the Committee, and then published it, we included a range of options. Those options are what we are taking forward. The suggestions about the reform of private family law were in that paper. One option was to do the sorts of things that we are talking about: to tidy up on the merits, repeat applications and so on. The other option was the consideration of removing it entirely from scope, which is what has happened in England and Wales. Certainly the outcome of the consultation, as informed by both those reports and the other commentary that is coming from England and Wales — where they have effectively taken private family law entirely out of scope — have influenced the response, and the Minister, as I said at the outset, is clearly not taking that out of scope.

The Chairperson (Mr Ross): You spoke of the green form and alternative means of getting advice. There are obviously voluntary and community groups out there that will offer advice, but in tight budgetary circumstances, many of those groups are finding that their budgets are being cut, or that it is difficult to keep the capacity they have at present. If you move away the scope for legal aid to give that kind of advice, are you confident that the other bodies that are able to offer that advice have the budgetary capability to continue offering that to people?

Mr McGuckin: There is a range of bodies out there giving advice in certain areas. I guess the Citizens Advice Bureaux (CAB) give the most comprehensive advice across a range of areas. We did a little bit of work on that to look at the number of referrals to the Citizens Advice Bureaux compared with the number of green forms that we would be taking out of scope.

You asked the question about numbers. In the last financial year — it varies — there were some 4,500 green form applications in scope that we would now be taking out. That compares with a total of 332,000 pieces of advice that the Citizens Advice Bureaux gave in the same period, so in total, if all of it was displaced into the Citizens Advice Bureaux, about 1% of its overall business would be involved. There are more specialist agencies in certain areas, such as debt, where the numbers would be much smaller.

The Chairperson (Mr Ross): Finally, before I open up to other members, I have one more point. I am quite sure that all of us in our constituencies have been lobbied by family solicitors, barristers and the Law Society about concerns that they have. I wondered whether you spoke to other Departments as well during the consultation. I notice that there was a House of Commons Justice Committee report in March 2011. It stated:

Have you done any work to determine whether there will be a knock-on cost to other Departments — whether it be Health, DSD, or anywhere else in the Executive — as a result of the savings that the Justice Department will make by reducing the scope of legal aid?

Mr McGuckin: We consulted other Departments as part of this issue, and we have had input from them. Maybe Mark will want to say something more about that.

Mr Mark McGuicken (Department of Justice): We sit on a group called the government advice and information group, which is made up all the Departments that provide advice, and Citizens Advice and organisations like that will be there as well. A consultation went out to them, and we did not get any response, but we continue to work to ensure that the things that were taken out are provided for elsewhere.

Mr Hazzard: Thanks for the presentation. Current arrangements allow for advice and representation in relation to failures in education provision, but I believe that the proposal going forward is only for advice and assistance in relation to special educational needs. Can you outline exactly from what cases you are removing provision for representation and advice? In what sort of cases will that no longer be available?

Mr McGuckin: Those are issues that we will be working up in detail as we build up each paper as it impacts here. I am just looking at some of the categories. Mark may be able to say something about the level of detail of educational issues, which are coming out of scope. We are talking about 20 or 25 cases in 2013-14 coming out of scope and 277 under special educational needs, so it is a small minority of cases that are not classified as special educational needs. By way of comparison, I see that, during that period, the Citizens Advice Bureaux provided 2,000 pieces of advice in relation to education, so it is a small number of issues that would be coming out of scope under education.

Mr Hazzard: I am sure that it is a small number, but I do not see the relevance of that. An expulsion from school, for example, is a life-determining event for a young person. So, it may be a small number, but those are life-determining events. You said that SEN is going to stay in, so I presume, for expulsions, that type of representation has gone. Is that what you are saying?

Mr McGuckin: That is my understanding, with the caveat that we will come back on the detail of it.

Ms Deirdre McDaid (Department of Justice): Last year, there were 25 cases relating to education issues, and 277 cases relating to social services issues. We would like to look at the way that they are categorised in more detail to ensure that we know the detail in a high category of a description, but we would look to see that they have gone down every avenue before it becomes a legal issue.

Mr Hazzard: Surely that takes place at the minute anyway, does it not?

Ms McDaid: The information provided to the commission at the minute, or the agency, as it will be, does not give you that level of detail of advice.

Mr Hazzard: Even on the SEN stuff, which is vital, I notice that the commission was representing at tribunals. Will you still give assistance for representation at tribunals, or is it just going to be advice and assistance?

Ms McDaid: We have taken that on board because it is an area where there was a lot of feedback in the responses. It will stay in green form, and I believe that it will continue up until the point of representation.

Mr McGuicken: The rules around special educational needs tribunals will not change from their current position. My understanding is that it is advice and assistance up to the door of the tribunal, and then there is no representation at the tribunal. We will come back on that, but that is my understanding of it. This does not change those rules because it is being retained within scope.

Mr Hazzard: If possible, I would like you to come back to me and outline it in correspondence. If it is such a small number, why get rid of them? I believe that the spend is as little as £2,000 a year. If that is the case, that is miniscule, yet it is very important to the children involved that they have that access to justice. What is the logic behind getting rid of that very small number?

Mr McGuckin: In all these cases, the legal aid bill comes out to a very big budget or a very big number, but it is made up with an accumulation of small numbers. What we are looking at are cases where alternative sources of advice are available that do not necessarily require recourse to a lawyer in order to take forward the issue. That is why there are particular categories.

There are lots of small cases and, potentially, small amounts of money, but as I indicated to the Chairman, when you add it up you, you see that the costs that are collectively associated with that area are around half a million pounds a year.

Mr Hazzard: Finally, I see that the proposal is to retain public law challenges within the scope. Does that include judicial reviews of education decisions?

Mr McGuckin: Can we come back to you on the detail of that? We need to do a wee bit more work on judicial reviews and see what comes into those categories.

Mr Hazzard: OK.

Mr McGuckin: Our intention today is to give you an outline of the areas that we are looking at. For each of those areas — there are about six of them — we will come back with more detailed papers that will hopefully address fully the sorts of questions that you are asking.

Mr Hazzard: The detail will definitely be very much appreciated. There are big worries out there.

Mr McGlone: I am sorry that I missed the earlier part of your evidence. I want to take you through a number of things. Will you clarify the Department's understanding of what happens in a children's order case?

Mr McGuckin: I am not sure that I fully understand the question.

Mr McGlone: I will take you a stage further. In regard to children's order proceedings, there is a recommendation for only one set of proceedings in a child's life.

Mr McGuckin: I do not think that is quite right.

Mr McGlone: Maybe you could clarify that understanding for me, please.

Mr McGuckin: I dealt with that point at the outset, but, to recap, children's order proceedings in either public or private family law are not being taken out of scope. The Minister is keen to look at the efficiency and effectiveness of the system and at areas in which cases have potentially been extended for longer than they might otherwise have been had legal aid not been available. The Minister's postbag is full of letters from people who have written that a partner is taking them through the courts and using legal aid to extend the case.

Our intention is to look at private family law and see if we can define and set a set of circumstances to limit the unnecessary recourse to the courts when those issues can and should be resolved outside of the courtroom. As you rightly suggested in the question, a number of applications are made to a court and, in many cases, they are justified. It is about looking at the process, the merits and what has been happening with the cases to avoid them continually going back to court. That also came out in the consultation from the family courts. We had an interesting response in that area. Those are the sort of things that we will explore and write up in more detail.

Mr McGlone: Thank you for explaining the earlier bit to me. Just to get it completely clear: are you saying that the Minister is not proposing that children's order proceedings should be limited to one set of proceedings in a child's life?

Mr McGuckin: No, I do not think that is what he said.

Mr McGlone: He is not doing that. Right, OK.

In the context of the children's order and the protections in the best interests of the child through the court proceedings, have you done any evaluation of what you are proposing in the context of, for example, articles 6 and 8 of the European Convention on Human Rights, article 12 of the UN Convention on the Rights of the Child and the protections that are inbuilt in those for legal proceedings? In other words, have you legally proofed or sought any advice at all on the protections that exist for the rights of children?

Mr McGuckin: We will go through that detail as we develop the specific proposal, but there is nothing in the Minister's proposal that is not based on protecting the rights of the child and the individual. Some of the consultation responses were critical of the interaction of the parents and very clearly put the rights of the child and the protection of the child at the centre and the heart of those proceedings. They were critical of the way in which some parents conducted themselves and their cases. In some cases, the child was dragged at the centre and was used.

Mr McGlone: That, unfortunately, is the human nature of things. I have seen it when it boils down to child maintenance and stuff like that. Getting back to the judicial process and the rule of the law, surely it is for the courts and the practitioners to uphold the rights of the child.

Mr McGuckin: Absolutely.

Mr McGlone: Maybe I am picking it up wrong, but are you saying that the courts are allowing a situation to endure where a bit of ping-pong between parents is ongoing? Are you saying that the courts are not —

Mr McGuckin: I would not say that the courts are allowing it to endure. On some occasions, it can develop in that way, and you are then into it. A number of judicial bodies get together to consider how the cases are being taken through and to see how those issues can be addressed. In addition, the Department, along with the Department of Health, Social Services and Public Safety, is planning to do a pilot study of how to speed up the processes and move them forward. That will look at those issues as well, although that pilot has not got under way yet.

Mr McGlone: I will maybe come back later if there are other issues. I just want to get it completely clarified: for any proposals that you will be taking forward, specifically in terms of the rights-based nature of any legislation or practices by the Department, you will be seeking the appropriate legal advice around the protection of children.

Mr McGuckin: Yes.

Mr McGlone: At what level will that be sought? Forgive my ignorance, but where do you get that specialist advice?

Mr McGuckin: We have a range of advisers. I have internal lawyers in my division. We will start there, and, as necessary, we will go to the Departmental Solicitor's Office. Beyond that, we will seek counsel's opinion, if that is necessary.

Mr McCartney: Thank you very much for the presentation. You said that you are going to come back with a more detailed paper about what the changes are and how they are going to be —

Mr McGuckin: Each individual area will require different changes to legislation. There may well be relatively small amounts of money involved in some of them, but each of them are important enough to warrant an individual paper.

Mr McCartney: That is important. I will make a couple of suggestions that would certainly assist me. You should have a table as to what the current provision is, what it costs, what your proposals are and what the reduction is. I would certainly like to see what you believe the impact will be. I think that there is an acceptance that this will have an impact on access to justice. It will be interesting to see the Department's assessment of that.

I do not want to get into the detail today — I know that you are coming back — but, in the green form, there seems to be an assumption from the Department that it will shift automatically from a solicitor doing it to the community and voluntary sector. If that is going to happen, you have to say how that can be signposted. It would be interesting to know whether the community and voluntary sectors have the capacity to do it. Obviously, some of its budget lines are under pressure as well. Is the Department, knowing that people will be taking up work on its behalf, going to provide a budget line? We need to see something like that. Is that something that you are thinking about?

Mr McGuckin: It is helpful to have that articulation. That is the sort of thing that was in our mind for each of the areas. If the totality of what we suggest here moved across to Citizens Advice, it is the equivalent of 1% of referrals each year. For coming back to the Committee and assisting it, the sorts of areas that you outlined are in line with what we were thinking about.

Mr McCartney: But 1% of your referrals might not take up 1% of your time. Some of those referrals might involve complicated issues, so it could take longer to deal with them. Those statistics can be pushed about. We need to know what will be lost if the scheme goes ahead and then make the measurement, rather than just deal with sheer numbers. The other aspect of it is the impact. Some of these schemes have already been tried elsewhere, particularly in England and Wales.

Mr McGuckin: They have done quite a lot, yes. What we are proposing is more modest.

Mr McCartney: I understand and accept that. People who have analysed the changes in England and Wales are noticing a high rise in the number of personal litigants appearing in court. It is accepted that personal litigants take up more court time. If you have representation from statutory agencies, you have legal people tied to the court for longer than they would otherwise perhaps be. In terms of impact, at one end of the system you might be saving, but in another part of the system you are adding a wait, which might outweigh what you are trying to save. We need to get a read-across on that.

Mr McGuckin: At a high level, what I can say is that the vast majority of those criticisms have been around the changes in private family law. From my reading of the research and the reports that have been published, that is, effectively, where the increase in litigants in person is coming from. Of course, these proposals do not suggest that at all. The green form is all pre-court work anyway.

Mr McCartney: I accept that. I am talking about family law.

Mr McGuckin: Some of the other ones, yes.

Mr McCartney: With all the proposals you are making, it would be best if we had a table, and then we could have some sort of discussion around impact, because impact will be a bit subjective; I accept that.

The idea of repeat applications seems to feature. I liken it to the first round of this on the issue of two counsel. There was a view that there were too many cases where there were two counsel. Then, when there was a bit of drilling down, there was regulation in place that could prevent that, and subsequently has prevented that from happening. When you hear the phrase "repeat application", you need to get a sense of what that means. The legal professionals have all said that they believe in appropriate representation at the appropriate time. As with the two counsel issue, the guidelines are not being followed. It is easier managed through being more efficient rather than saying that you can have only two applications for a child for x number of years.

Mr McGuckin: I do not think that we were proposing to legislate on that. It is actually about making sure that there are good, strong guidelines in place and that they are capable of being appropriately applied.

Mr McCartney: In an overall sense, I do not think that anybody doubts the pressure on this particular issue. The prediction of the budget has not been a great success down through the years. The Legal Services Commission is supposed to tighten that up for us in future so that, at the start of the year, you should have a better idea of what the budget can be so that it does not always look as if you are chasing after more money. If we had a better prediction, that might be tightened up.

I just want to make a final point. When we are considering all these changes, the idea that there can be a 15% levy imposed right across the board makes it very difficult to assess it properly. I asked the Minister about that the other day, and there seems to be a bit of a step back. To me, it does not seem to be the way to do it. If there are efficiencies that can be made, we need to see them, but the idea is that you make those efficiencies and then someone comes in and says that they are going to take 15% right across the board.

Mr McGuckin: Do you want me to address that particular point?

Mr McCartney: Yes.

Mr McGuckin: As you know, legal aid reform takes a considerable period to work through because of the life cycle of certificates etc, so when you introduce a change, it takes time before that change reflects itself in the budget because of the ongoing cases. The Minister is facing a £40 million shortfall in his budget forecast against the budget that was put in place for 2015-16. To address that, he has made cuts elsewhere in the Department and has increased the budget by £18·5 million, leaving a shortfall of some £20 million. That is all in the public domain. The idea of the levy was as a temporary emergency measure to be put in place to help the Department to live within its budget while the other measures that were being brought forward took effect and delivered the savings that were necessary. That is the relationship between the two things.

Mr McCartney: It was a temporary measure but it can be held in legislation and be repeated. The term "temporary legislation" here does not reflect the truest meaning of the words.

Mr McGuckin: The legislation is not drafted in the papers that are with the Executive Committee. The intention was that, each time, the levy would apply only for the financial year in which it is set and would lapse at the end of that year. If it were required for the next year, it would be brought back to the Executive and the Assembly. That is the proposal. Ultimately, there would be a sunset clause in the legislation so that it would, in fact, come to an end at a preset time. As I said, those proposals are currently sitting there, but they have not yet been fully explored.

Mr McCartney: That is obviously something that we will come back to. Thank you very much.

Mr A Maginness: Thank you very much for your very useful presentation. I welcome the fact that neither public nor private family law cases are to be removed from legal aid. That was a very helpful point. You talked about ancillary relief cases, but my understanding, having discussed this matter with representatives of the legal profession, particularly family solicitors, is that in most cases it is cost-neutral. The reason for that is that property settlements and capital disposals are made as a result of court orders, through negotiation in most instances, or where the court decrees it. The statutory charge that has been introduced in relation to ancillary relief cases means that that money is taken out of the matrimonial settlement and is not a charge on legal aid. That is the way that the system operates as I have been informed, and I have some knowledge about it. It should be cost-neutral, so I do not understand why you are talking of a saving of about £5 million. That seems to be a very substantial amount of money. Given the information that I have at my disposal, that is not the level of saving that there might be in any event.

Mr McGuckin: That figure is aligned against the commission's out-turn spend in terms of those classes of cases. There are a number of figures in there because there is a separate figure for divorce, which will include an element of ancillary relief in it as well. At this point, it is a direct cost to the legal aid budget. When we come back —

Mr A Maginness: May I interrupt you there? I am sorry for interrupting you and I will come back to the point that you are making. There is no such thing as ancillary relief except through divorce. You cannot get ancillary relief without the issue of divorce proceedings. In this jurisdiction, getting a divorce is straightforward; it is a formality, practically, given that the parties are separated and so forth. It is only in divorce cases that you can get ancillary relief. The divorce itself is such a formality that it does not really carry very much of a cost.

Mr McGuckin: There are quite significant costs associated with divorce and ancillary relief.

My point is about the way the certificates are recorded by the commission currently. On some of them, ancillary relief is shown separately and, on some of them, it is not. That is the subject of a piece of work that we will do before coming back to the Committee to give the detail.

Mr A Maginness: Will you address the issue of the statutory charge?

Mr McGuckin: We will absolutely do that as part of that.

Mr A Maginness: Thank you. When you look at the figures, it will be interesting to find the cumulative effect of the statutory charge that has been introduced. It has only been in place over the past two years, if I am right, Mr McGuckin.

Mr McGuckin: I can confirm that for you as well.

Mr A Maginness: I am suggesting to the Department that the savings that you are talking about may well be illusory, given the effect of the statutory charge in most cases. Yes, people will apply for legal aid, but the solicitor will say to them at the end of the case that there is no point in going to legal aid because that will take money out of the matrimonial settlement anyway, so, effectively, it is cost-neutral.

Mr McGuckin: I can only say that there is currently a significant drain on the legal aid fund as a consequence of that. We will check out the points that you have made and include and address them in the detailed paper that will come back.

Mr A Maginness: I am not trying to ambush you on this; I really am not. I just want to try to get the thing clarified.

The other point is about contact. On quite a number of occasions at Question Time in the Assembly, the Minister has said that legal aid should be limited to one contact proceedings case in any child's case. I get the impression that you are talking about more than one contact case.

Mr McGuckin: What we are suggesting is what is appropriate in the circumstances and to avoid situations where it is running on. I think that the Minister is concerned about situations, for example, where people are coming back to the court and saying that there needs to be a different 15-minute slot and so on. That sort of stuff does happen.

Mr A Maginness: I am not sure that that is evidence-based and I take some issue with you on that. I have checked this out with practitioners and they have found that to be a rather bizarre suggestion. First, they act under the Children (Northern Ireland) Order 1995, which states that you act in the best interests of the child at all times. It also talks about a no-order principle so that, before you issue any proceedings, you try to negotiate a settlement to any family dispute. It also includes a no-delay principle so that you are not delaying in a way that prejudices the interests of the child and so that the child is at the heart of the process. Contact is not the right of the parents; it is the right of the child.

The point that I am making is that practitioners deeply resent what is being said by the Department: the suggestion they will allow a case to drag on simply because the client has the benefit of a legal aid certificate. They say that, in any event, even if they wanted to do that, the district judge or the County Court judge, or whoever is dealing with the matter, would put an end to that because they would not tolerate trivial, vexatious or frivolous applications in relation to contact.

Mr McGuckin: We will, of course, take on board what the legal profession has said and what the judiciary, which is operating this, said. As you know, different sanctions and different procedures operate at the different court tiers. Maybe that has an impact as well, and certainly that is one of the things that came out in the comments that came back from the judiciary.

Mr A Maginness: You have consulted the judiciary on this?

Mr McGuckin: The judiciary responded to the consultation, which was a public consultation.

Mr A Maginness: I just stress that point to you, because I do think that practitioners would reject that that happens with frequency. I am not saying that it does not happen, but it certainly does not happen with frequency and not to any conscientious practitioner.

The other point that I want to make was raised in passing by Mr McCartney. If a client is unrepresented in court, particularly in family proceedings, it means that they become personal litigants. They could be up against somebody who has resources and money, and, in that instance, it just adds to delay and clutter in the court system and diminishes access to justice, in the sense that there is no expeditious use of court time etc. Have you taken account of that? As Mr McCartney said, in England, the National Audit Office report said that there was a 30% increase in personal litigants in the English system. Have you taken that into account in your approach to reforming the family law system?

Mr McGuckin: We are not taking private family law out of scope. In England and Wales, private family law has been taken out of scope. As I said to the Chairman earlier, we have been very much influenced by the experience in England and Wales and by the PAC and Audit Office reports and other commentary. That is why the decision was made not to take private family law out of it.

Mr A Maginness: Will you bear that in mind in relation to the determination of the level of choice? Chair, it is maybe not germane to this aspect of our discussions but I am just flagging up the point that, if you reduce fees to a level that is unviable for practitioners, you will end up with personal litigants.

Mr McGuckin: We will take that into consideration when we look at fees, yes.

Mr Frew: You will get into the detail when you come before us again on the different tranches. Explain to me again why you are separating them into tranches. You talked earlier about different aspects of law needing to be changed. Is that why you are breaking it up into bits?

Mr McGuckin: Not really. They are all different types that have a different effect and a different impact, and it becomes neater to look at an individual set of circumstances and the change that you are making to that. It also puts it into bite-sized chunks for us to take forward as discrete pieces of work. We will take them forward contemporaneously. They will come up pretty much at the same time, but we are not seeking to overload the work of the Committee either. It is about making it manageable and doing what makes sense.

Mr Frew: Some might say that, in a way, you are declaring your hand by setting all the cards on separate tables and saying that you may take some forward but not others. How do you counter that?

Mr McGuckin: We sent out a consultation document that was a very broad consultation on the scope of civil legal aid. The post-consultation report in front of you today gives an overview of the responses to that and the decisions that the Department is taking on what it is moving forward with, and the areas that it is not moving forward with. I do not think that we are putting our cards on different tables because this is the table that we will come back to with all the cards over time.

Mr Frew: All those cards in your hand will move forward at the same time to a point where you have reform and you exact change in all those spheres. Am I right in saying that, in response to the question from the Chairman earlier, you said that it would save £7 million to £8 million?

Mr McGuckin: Yes.

Mr Frew: The budget last year was £53 million.

Mr McGuckin: That was the spend on civil legal aid; the budget was much less.

Mr Frew: In 2014-15, it was £89 million for the fund alone.

Mr McGuckin: Looking at the actual spend on civil legal aid and the run of figures in cash terms, our forecast for this year is that about £52 million will be spent. In 2013-14, the cash payment was over £54 million; in 2012-13 it was £48 million. That is the run of figures that is involved.

Mr Frew: If you look at it over a 10-year period, it is a more dramatic rise.

Mr McGuckin: The earliest figures that I have before me are for 2010-11, when it was £42 million. It has gone up by 20% in the last five years.

Mr Frew: It has increased incredibly over the last number of years, and even this year. You could argue that it is out of control.

Mr McGuckin: It is certainly demand led, and there are costs associated with that. That is what we are trying to bring under control.

Mr Frew: While reform may have to happen, there will always be pain and an effect, yet, out of all that money, you are talking about saving £8 million.

Mr McGuckin: From this set of reforms of scope, and bearing in mind that these are the first areas that we have actually looked at in terms of the scope of legal aid. What we have done previously is to look at the fees that are payable in respect of legal aid at work and we have looked that the appropriate levels of representation, which Mr Maginness referred to earlier, in relation to the types of cases and the court tier which they are at. There are a number of different areas of reform that are coming together and which will deliver savings, but this is, effectively, the first time we have looked at scope issues.

Mr Frew: Some would argue that you are not moving fast enough, soon enough.

Mr McGuckin: Some do argue that with me and I also get lots of people arguing the contrary: that we should not be impacting on scope, reducing fees or addressing levels of representation. We have a balance to strike, I guess.

Mr Frew: If this is only your first wave, if you like, on these various scopes and areas of civil legal aid, and you are making £8 million in savings from a massive pot, when you get to the other end, and you have completely and utterly reformed legal aid, what you think the annual budget will look like?

Mr McGuckin: To a certain extent, it is a moving target because it is demand led. Things change, new issues come into focus that need to be addressed, and other things wither on the vine. I would need to do a further calculation and project it across a number of years. One of the things that you find, as I have already said, is that, when you put in place reforms, they apply going forward: to certificates and fees to be paid going forward and not historically. There is quite a lengthy life cycle on a number of these types of cases, including the more expensive ones. You would need to project forward quite a lengthy period, and that is always going to be affected by changes in the demand for legal aid as it goes forward and the types of cases that come forward.

Mr Frew: The rationale for my question is that, if and when you make that £8 million saving through the reform, within one year it will be gobbled up by increases in costs if the curve continues the way it is going. Within one year, all positivity and savings will be eaten up in the curve.

Mr McGuckin: There are two ways of looking at that. The other factor is that we have been working on a project to look at civil fees, which will also address that particular area. If it is the fact that there is a curve that goes up and demand increases, the budget breach would be even greater if we did not introduce the reforms that we are introducing now.

Mr Frew: Again, I put the question: have we gone far enough?

Mr McGuckin: Other things could be done. You could go down the route of what happened in England and Wales and, for example, take private family law totally out of scope. We consulted on that and we have seen the ramifications of delivering that in England and Wales: the knock-on impact on other areas, other Departments and the justice system generally. That is not necessarily a good thing, so there is a balance to be struck. That is why we looked carefully at not taking things away or removing access to justice but at areas where alternative specialist provision is already there for some of the green form issues. Other resources can be used to take forward a case. In probate or land cases and so on, there is property involved. Is it a matter for the legal aid fund, in the face of other pressures and requirements, to support that?

The proposals that we are working up have been based on whether or not alternative provision is available so that access to justice is not necessarily affected but we can deliver the savings to the legal aid fund. We will come to that point in the second session when we look at money damages cases, because the consequential impact of some of the issues there was very much at the forefront of our minds.

Mr Elliott: Thanks for the presentation. I know it is difficult, but how do you assess the impact on families through a consultation like this?

Mr McGuckin: In private family law?

Mr Elliott: Yes.

Mr McGuckin: Lots of representative bodies will respond, including the legal profession. I think we got 27 responses, including from the legal profession and the judiciary working in that area, and from other Departments. We also got one or two personal responses, with people saying, "This is the impact that it had on me and my particular case." Those responses inform the picture but, ultimately, a lot of representative bodies provide information and make an assessment.

Mr Elliott: I did not have an opportunity to read all the responses. Did the Children's Commissioner make a response?

Mr McGuckin: I am not sure. The Children's Law Society did. A range of organisations responded, including Voice of Young People in Care, the Family Law Solicitors' Association and so on.

Mr Elliott: OK. That was just a general question. I have couple of more specific questions. Earlier, you spoke about agencies and organisations such as Debt Action and, in particular, the Citizens Advice Bureaux. Do you see the likes of those agencies and organisations almost replacing the need for legal aid requirement in some cases?

Mr McGuckin: Some of those organisations can provide specialised advice on debt and so on. One may well question whether it is legal advice that an individual needs or specific advice in relation to their problem. In those areas, we would anticipate that they could replace the existing provision.

Mr Elliott: Do you see a significant difficulty where one partner owns most of the assets, maybe the family home, in one name as opposed to joint names, and the other partner cannot afford to go to court because they do not have access to legal aid to challenge for a share of those assets?

Mr McGuckin: In divorce and ancillary relief proceedings?

Mr Elliott: Yes.

Mr McGuckin: Where there are assets at the centre of a dispute, we want to explore whether the court can have an influence over releasing some of that property to allow the case to be taken so that both sides are adequately funded.

Mr Elliott: Are you saying that you would explore releasing the assets first?

Mr McGuckin: Releasing a portion of the assets. If you look at some of the commentary on this, you can see that there is a range of people who would not have access to legal aid but exhaust their assets fighting for them. We certainly do not want to get to that situation. What we will explore is whether there is an opportunity where the court could authorise the release of a proportion of the assets to allow the case to be taken effectively on each side.

Mr Elliott: How would you make that judgement? Obviously, there could be a fine line between having no assets at all at the end of it and releasing some of the assets.

Mr McGuckin: I think that the court will be in receipt of the detail of the assets that are available.

Mr Elliott: OK. Chair, thanks for your patience. Can you explain a wee bit more about the prospect of success and whether the Department would issue guidance? It is referred to in the correspondence that we have received from you that there needs to be a prospect of success.

Mr McGuckin: I will ask Deirdre to address that specific issue.

Ms McDaid: The prospect of success means the likelihood of the client's obtaining a successful outcome in the proceedings, assuming the case were determined at trial or another final hearing. There are different categories of the prospects of success. It would be the solicitor's responsibility to inform the commission or, as it will be, the agency of the prospects of success — very good meaning

per cent or more and so on. There are different categories. Also coming into that is that they would need to address the considerations of the cost-benefit ratio as well. It would apply in several different ways depending on the nature of the proceedings. If the claim was primarily for damages by a client and does not have a significant wider public interest, it would be refused unless the cost-benefit ratio were satisfied.

Mr McGuckin: Just to add a gloss to that: in effect, what you are asking is for an assessment to be made that you would make if you were not legally aided and you had an issue that you wanted to address. Is this worth going for? How likely am I to succeed in it? What will I get out of it? Will it actually be worthwhile going forward? It is actually applying to an application for legal aid the sorts of tests that a privately paying client would take for themselves in taking that decision.

Mr Elliott: Is it someone like a solicitor having to make a report to the Legal Services Commission?

Ms McDaid: On whether the likely benefits to be gained would justify the likely costs.

Mr Elliott: How is that held to account at the end of the case?

Mr McGuckin: If you have a solicitor who frequently loses cases on the basis of their cost-benefit analysis that they were going to win, clearly there needs to be learning going on at that particular point in time. It is about moving forward on the basis of making better assessments and judgments.

Mr Elliott: At this stage, you have no proposed mechanism by which you would resolve the issue if there was a solicitor who regularly lost cases.

Ms McDaid: That is where the consultation on the statutory registration scheme would come in. That would be something that would be looked at under the quality-assurance aspect of the registration scheme. The audit process would alert the auditors to those kinds of outcomes.

Mr Elliott: There are no outworkings of it in this document?

Mr McGuckin: No.

Mr Dickson: A great deal of information has passed round the table today. I do not have much more to ask. What is the alternative to this?

Mr McGuckin: The alternative to these reductions in scope? I am not sure that there is an alternative other than an increased budget for legal aid.

Mr Dickson: We do not have that, do we?

Mr McGuckin: That is not available, no, and the budget is cut this year.

Mr Dickson: Can I ask you about what might be described as the displacement that will arise as a result of less green form activity? Does the Department fund CAB and other advice services in any way? In other words, is that an alternative way to get the same service but more cost-effectively?

Mr McGuckin: The Department funds an element of housing rights in terms of a court-based intervention. It is funded through the legal aid fund. I am not sure whether there is an element of immigration. Is there?

Mr McGuicken: An element of that is paid through the Law Centre.

Mr McGuckin: Mark sits on the interdepartmental steering group on that.

Mr McGuicken: We put funding into two projects. At the minute, the Legal Services Commission puts grant funding into housing rights for, as Mark says, the court-based intervention and for the Law Centre. A paper is due to the Committee next week on the evaluation of those two schemes. We sit on a government advice and information group, which details the level of funding going to all of the community and voluntary sector.

Mr Dickson: In the same way, finally, that Mr McCartney asked for you to set out the consequences in a spreadsheet, could we see what the displacement consequences would be if you were not delivering that service any longer? Where will it likely be displaced to?

Mr McGuicken: The one difficulty with that, possibly, is that we are not sure. There is no evidence to say that the people seeking green form advice are not already seeking advice from Citizens Advice.

Mr Dickson: Many of them are.

Mr McGuicken: So, it may not be a total displacement of those people who were taking out of green form.

Mr Dickson: My experience as an MLA tells me that that is what is happening.

Mr Lynch: Mark, you mentioned, I think in response to one of the earlier questions, a pilot scheme. What was the nature and focus of that?

Mr McGuckin: That was on the Children Order pilot. It flowed from the access to justice review recommendation about the family law system. The purpose of the pilot was to trial some arrangements that had been trialled in three boroughs in the London area. It was about speeding up the process of taking Children Order cases through the system. I am not across the detail of precisely what it was going to do, but the idea was to reduce the amount of time to, I think, about 26 weeks for most Children Order cases to be progressed. The Department of Health, Social Services and Public Safety has a policy responsibility in relation to the Children Order issues, and it was planning to lead on a pilot. I think the intention is still to do it, but it has not yet been able to find the resource to get it off the ground. We would have input into that.

Mr Lynch: Finally, where is the promised EQIA on these reforms?

Mr McGuckin: On all of the scope issues?

Mr Lynch: Yes.

Mr McGuckin: We published a preliminary EQIA, along with the consultation document, and invited further comments. In the document, which is front of you, we have said that we will perform further screening in each of these areas and, as appropriate, carry out a full EQIA on the foot of that. That will look at the individual areas.

Mr McGlone: I want to make a very brief point. I hear the CAB and the Housing Rights Service mentioned. You have not mentioned Advice NI yet. It appears that the Department's anticipated fall-out from this will be the offloading of a lot of work to the advice sector. I deal with the advice sector quite a bit. I know how strained it is in its resources and finances at the moment, but, as well as that, with the anticipated welfare reform in whatever guise it comes, because it will come, it is definitely going to be stretched to the point of exasperation. So, according to what you are saying, there are only two options: first, offload or signpost to the advice sector a lot of work that is not going in that direction at the moment, and the sector is so under-resourced it cannot handle it; or, secondly, provide resources to the advice sector so that it can carry out and help fulfil that work. However, that would defeat the purpose of what you appear to be saying that you are doing here at the moment. Have you carried out any analysis with the advice sector as to how prepared, or otherwise, it might be for what could be dumped in its direction as a consequence of what is being proposed here today?

Mr McGuckin: Certain elements of the advice sector responded to the consultation document, as did the Departments that have lead responsibility, and, as Mark said, he sits on the interdepartmental group. Clearly, we took those responses on board. As I pointed out earlier, we are talking, in broad terms, about a relatively small number of aspects that have been taken out of the scope of the green form, which represents about 3,500 applications. That is 1% of the transactions of the CAB alone.

Mr McGlone: Can I stop you there, Mr McGuckin? You have said repeatedly that there are so many repeat cases coming back before the courts, causing repetition of effort. I cannot see that that duplication or repetition, which is usually at the request of either partner, or whatever the circumstances might be, would be any less in the advice sector. The only difference will be that the responsibility for payment for it will go to some Department other than you.

Mr McGuckin: I am not sure that I understand the point that you are making. The repeat applications on family law are not affected by the green form scheme.

Mr McGlone: You say that there are 3,500 cases. Those 3,500 cases, by their very virtue, will not necessitate 3,500 individual appointments of 15 or 20 minutes apiece; that is what I am saying. Have you carried out an audit with the advice sector to ask, "Do you realise what is coming in your direction?" Does it anticipate what is coming in its direction, the cost and the time involved? My big concern is that everything will go in its direction, including welfare reform, which was coming in its direction already, and the fallout from that as people seek more advice, advocacy and stuff like that. I see this coming to a crunch where legal aid is under-resourced, which your proposals necessitate. This is precipitating stuff for an already overburdened advice sector that is having huge problems trying to deal with a plethora of stuff that is already coming in its direction.

Mr McGuckin: We will address that issue in the paper looking at the detail of this, including where particular areas might be signposted to. We will be in discussion with the relevant Departments in relation to that, and we will be putting out clarity around the particular number of places that you would expect that this is going to engage. Hopefully, that will address the concern that you have.

Mr McGlone: And the resource issue? More work means more people hours, and there is an inevitability about the 3,500 cases, in whatever shape, form or fashion they might take. Are you just offloading this in the hope that DSD will pick up some of the tab for it?

Mr McGuckin: This is about saving money against an overstretched legal aid budget. There are alternative sources of advice available. Depending on the extent of the implication, the Minister will consider whether or not there is some displacement of resource there. However, ultimately, this is about trying to bring the legal aid spend within budget.

Mr McGlone: I realise that you are doing your job, but it seems to be that it is happening, whatever the consequences might be elsewhere. I do not expect you to put a full stop to that phrase, but that is what is coming across to me. Believe you me, we in this room, collectively, deal with a lot of cases in our own offices. We know the weight of constituency work. We also know the huge value of the advice sector and the pressures that it is under. It would be helpful if we were a bit better informed as to what you have done. You say that you will talk to DSD about this, but we need to know what you have done with the various organisations in the advice sector to establish what precisely this means for them and how they can handle it. I think that it will be quite an impossible task.

Mr McGuckin: As I said at the outset, we published this consultation last autumn. It was completed recently. We have had inputs from a variety of organisations. We are now bringing forward firmer proposals in the areas that we are going to work up. We will work those up, and that will have to form part of that work.

Mr A Maginness: I have a small point to make, relating to the statutory charge. The statutory charge covers both divorce proceedings and ancillary relief. I might not have made that clear, but it covers both. You will come back on that.

Mr McGuckin: We will take account of that when we are looking at ancillary relief.

The Chairperson (Mr Ross): I am always keen to finish on a positive note. Are there areas of agreement in the consultation?

Mr McGuckin: There is agreement not to take anything out of scope. There is broad agreement that a lot of green form work can be undertaken by the advice sector and that legal aid is often sought in cases where it might be more appropriate to get expert advice from the specialist area rather than, if you like, a generalist lawyer. I am not sure, Mark, whether there are any others that jumped out.

Mr McGuicken: The majority of respondents accepted that there are multiple advice providers for green form and related stuff. There is a recognition that there are a lot of people out there for that. Likewise, many other Departments are responsible for providing advice, particularly on benefits and stuff like that.

The Chairperson (Mr Ross): Finally, you are meeting with the Law Society and the Bar Council to bring forward your individual papers. How long do you expect that to take, and when do you reckon you will be back with those papers?

Mr McGuckin: Could we draw up a project plan and share that with the Committee? There are a number of issues on which we need to engage with the Law Society and Bar Council. Certainly, over the next couple of months we will be working this up in more detail and reflecting on some of the comments that were made around the table today so that, when we come back, we can satisfy the Committee and meet your information needs.

The Chairperson (Mr Ross): Presumably, it is necessary to make the savings that we are talking about pretty quickly, otherwise —

Mr McGuckin: We will be moving this forward as quickly as we can. We have, as the Committee will be only too aware, put a hell of a lot of effort into subordinate legislation related to the Legal Services Agency and other things. We will free up some resources now to look at these areas.

The Chairperson (Mr Ross): We looked at some of that stuff twice, so we were very —

Mr McGuckin: My apologies for that, and thank you for the opportunity to apologise.

The Chairperson (Mr Ross): Thank you very much. I know that Mark and Deirdre are leaving. I appreciate your time.