Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): I welcome the representatives of the Bar of Northern Ireland. We are joined by Donal Lunny QC — sorry, KC. That is force of habit, Donal; I apologise.

Mr Donal Lunny (Bar of Northern Ireland): Do not worry.

The Chairperson (Ms Bunting): We are joined By Donal Lunny KC, the chair of the Bar of Northern Ireland; Denise Kiley KC, the Bar's vice chair; and David Mulholland, the Bar's chief executive. Thank you very much for coming. We appreciate your taking the time. Thank you for your providing your paper in advance, and we look forward to hearing what you have to say about elements of the Justice Bill. I invite you to make a presentation of up to 10 or 15 minutes, after which we will move to questions.

Ms Denise Kiley (Bar of Northern Ireland): Thank you, Chair and Committee members, and good afternoon to you all. I will start by thanking the Committee for hearing from the Bar of Northern Ireland today on the important matter of the Justice Bill.

There are several very important issues and principles at play. Donal Lunny, the chair of the Bar, and I will take you through them. As you are well aware, the Executive and the Assembly returned one year ago this week, and it is very encouraging to see locally elected MLAs scrutinising an Executive Bill. The Bar of Northern Ireland is very pleased to assist in the scrutiny process.
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We intend to concentrate our evidence around serious concerns that we have about clause 28, which sets out proposed reform of taxation. I will, however, begin on a point of optimism. There are some aspects of the Justice Bill that we view as positive, so I want to address those. I will turn first to Part 2, which deals with the custody and bail of children. The relevant provisions there ensure the presumption of bail for children. There is an active presumption against children being detained in custody and refused bail due to a lack of suitable accommodation. As you know, clause 14 adds that the court must openly state its reason for remanding a child in custody for more than three months. We feel that the inclusion of those measures is progressive, and the Bar is supportive of them. It is a common-sense and evidence-led policy position that children should be placed in custody only as a measure of last resort.

In Part 4, clause 25 closes a gap. At present, as you know, a judge can enter a no bill for a manslaughter or murder charge but cannot do so for the related charge. It is to be welcomed, we feel, that the gap can now be closed by clause 25.

Clause 28 concerns taxation. The first question to ask, perhaps, is this: what is taxation? It is, perhaps, a misunderstood process, but, quite simply, taxation is the assessment of legal costs under a long-established process whereby a bill for legal services is reviewed by the taxing master in order to determine whether charges are reasonable for a service that is provided. Fees can be marked up or marked down. Most importantly, though, the taxing master is an independent judicial office holder who performs a judicial function.

I will hand over to the chair, Donal Lunny KC, who will take you through some of the Bar's particular concerns about clause 28.

Mr Lunny: Thank you, Denise. I would like to echo Denise's thanks to the Committee for having us here to give evidence on this important Bill and on the important topic of taxation. Clause 28 is the relevant clause, and we see it as proposing radical changes to the assessment of taxation of legal costs in this jurisdiction. It does that by inserting a new provision, section 59A, into the Judicature (Northern Ireland) Act 1978.

The very clear aim of clause 28 is to remove entirely any role for the court — the court is usually the taxing master — in determining the fees to be paid by the Legal Services Agency (LSA) to the lawyers of a legally aided person where, in any civil or criminal proceedings before the High Court or the Court of Appeal, the LSA, rather than the opposing party, is responsible for paying the legally assisted person's costs. This most often arises, as you probably know, where the legally assisted person loses their case. The Bar of Northern Ireland has some serious concerns around this proposed provision. It is a radical change, and I will explain those concerns now, in summary.

First, we see clause 28 as a direct attack on the independence of the taxing master as an independent judicial office holder performing a judicial function. As you are aware, I am sure, it is a settled and fundamentally important principle that the judiciary should operate without interference that is inappropriate or unwarranted. The policy intention or imperative around the interference that clause 28 represents is neither, in our view, clear nor convincing. The taxing master is already legally bound to protect the legal aid fund. That is a duty. There is absolutely no evidence — that we are aware of — of a failure to fulfil that statutory obligation, nor even any evidence of the Department having alleged that.

It is unclear to us what the Department perceives to be the disadvantages of having a demonstrably independent system. It has not articulated the comparative advantages of any alternative approach, and the Bar has to wonder whether the Department simply does not like the outcome of some taxation decisions in respect of legally aided cases and is therefore seeking to remove publicly funded cases from taxation altogether. The precedent that that would set — where a government body removes a class of case from an independent judicial process because it does not like the results of that process — should be of grave concern, not only to this Committee but to all citizens, we submit.

Secondly, the stated policy aim of clause 28, which is achieving certainty and predictability around the legal aid budget is, to a significant degree, unachievable. Legal aid is demand-led. We say that the Department must adopt a needs-based approach to legal aid and allocate to it an appropriate budget that invests to deliver a quality, high-value service to all citizens in receipt of publicly funded legal services.

The Committee also should be advised of the pre-existing checks and balances that exist through the judicial function of the taxing master. The Department has rationalised the policy change on a Northern Ireland Audit Office (NIAO) report that was published some 14 years ago and on a Public Accounts Committee report that was published nine years ago. One concern raised by the Public Accounts Committee in its 2016 report was:

In arguing that, the PAC quoted figures that had been provided by the Department for the years 2012-13 to 2016. Those figures showed that nearly 90% of bills were reduced, to some extent, after taxation, and, overall, that represented a reduction of some £9 million in claims of £69 million. That is about 13% of a reduction.

With all due respect to the PAC, that criticism, we say, was unfair and, more importantly, missed the really important point: the fact that fees are sometimes reduced or disallowed on taxation is positive proof of the value of the system. In addition, we say that it is important to recognise that there are safeguards and sanctions in place to ensure that practitioners do not mark an excessive fee. Speaking for the Bar, I point out that statement of principle 30.2 of our code of conduct provides as follows:

Secondly, as we see it, you, as Assembly Members, are being asked to vote blind on clause 28. It remains entirely unclear what the alternative methods of assessment will be, what the time frame for them is and how the future systems will recognise the time and skill invested by solicitors and barristers. We, of course, appreciate that the Department intends to put some other system in place. However, the sequence of legislative steps here is of potentially great importance. Rather than have you, as MLAs, decide whether to remove taxation in a context where you are able to assess the adequacy of the proposed alternative, you are being asked to take the first step on the basis that the Department will not commence the relevant provision, and it is the Department that will decide when to commence it, not the Assembly. In effect, as we see it, you are being asked to give the Department — a Department that says that it is concerned about being prudent — the legislative equivalent of a blank cheque.

As for potential alternatives to taxation, we are concerned that the Department may introduce statutory scale fees, which are not viable for a number of reasons, amongst which is the very obvious one, namely the Department's repeated inability to review scale fees in the limited areas where they have been introduced in our jurisdiction. By way of example, family care centre fees are dictated by the Civil Legal Services (Remuneration) Order (Northern Ireland) 2015, and the Department has not fulfilled its statutory obligation to review those fees at all since 2015. As for Crown Court fees, the Department's failure to review is, I am afraid, very well known in light of the Criminal Bar Association's (CBA's) current withdrawal of services.

Thirdly, and finally in this regard, one very important indirect consequence of the removal of taxation of fees and legally aided High Court and Court of Appeal cases is that it will undoubtedly create a two-tier system of access to justice. It is unclear whether the Department has simply failed to consider that very foreseeable consequence of its actions or whether it is simply carrying on regardless. Fundamentally, the Department wants to remove taxation from those entire swathes of litigation so as to reduce the legal fees that the Department, through the LSA, has to pay. Whatever its alternative system is, it will almost certainly result in lower fees for lawyers who act in legally aided cases. One foreseeable effect of that will be to discourage lawyers from acting in legally aided cases when they have the option to act in non-legally aided cases where taxation of costs will remain available. That obviously risks leading to a system where, unlike at present, the best lawyers will act only in non-legally aided cases. That seems obvious to us.

We ask you also to note that the Justice Bill does not purport to deny access to taxation to all litigants, only to those litigants who meet the financial conditions for access to legal aid and only where the legal aid fund is paying. An example of the disparity there is this: a prisoner in HMP Maghaberry who obtains legal aid to sue the Department of Justice following an injury sustained while working in the prison kitchen will have no access to taxation of costs if he ultimately fails in his claim, whereas he will have access to taxation of costs if he wins. A non-legally aided Department of Justice employee working in the same kitchen in the same prison will have access to taxation of his costs whether he wins or loses his claim against DOJ.

Finally in this regard, I would like to contextualise our evidence and some of the narrative that we are constantly exposed to about legal aid. Northern Ireland's system of legal aid is often described as "generous".

Furthermore, on occasions, unfortunately, citizens in receipt of legal aid are described in the media and by some others as though they are somehow undeserving. As you well know, legal aid is one part of our cherished welfare state. It is a demand-led and a means-tested public service. Those who meet the eligibility criteria to avail themselves of it have the statutory right to its assistance. Across this jurisdiction, in 2023-24, almost 64,000 citizens were granted legal support and assistance. We know that you will not lose sight of the fact that those individuals are your constituents and our fellow citizens.

There is a direct correlation between demand for legal aid provision and socio-economic challenge. We can profile greater demand for legal aid in council areas that are experiencing long-standing socio-economic difficulties, and, unsurprisingly, that causal relationship results in public expenditure per capita in Northern Ireland being higher than the UK average. That applies in several other areas, such as health and education; it is certainly not confined to legal aid.

I will conclude our evidence at this point. Denise, as vice chair, David, as chief executive, and I are happy to take any questions that you have, and we will answer them as best we can.

The Chairperson (Ms Bunting): Thank you very much, Donal and Denise. I usually organise our questioning in our closed session, but I neglected to do that this time, so I will do it now, if you will bear with us for a second. It means that we can direct things rather than jumping about throughout the Bill. I ask members to indicate whether they have questions on the children's bail issue. I do. Has anybody questions on the no bill issue? I presume that the bulk of questions will be about taxation. Who has questions about that? Could you indicate now? Nobody? Deirdre?

Miss Hargey: Probably, yes.

The Chairperson (Ms Bunting): I have a couple of questions on those two issues. Does anybody have further questions for members of the Bar on anything else in the Bill?

Mr Beattie: I would like to ask a general question, if that is possible, please

The Chairperson (Ms Bunting): Yes.

Mr McNulty: Likewise, and I have a question about the code of conduct.

Ms Egan: I might indicate to come in if I have a relevant question, Chair, if that is OK.

The Chairperson (Ms Bunting): Yes. We will afford people the opportunity to come in. It is just about giving some structure to how we proceed.

May I ask for your opinion on something without being charged for that? We have been discussing children's bail. There are clauses that refer to a child's being denied bail on the basis of a threat of public disorder. We are not clear on whether the threat of public disorder arises because the child might engage in that or as a result of the child's being in receipt of bail. I am interested in your interpretation. Where the threat is interpreted as resulting from the child's being granted bail, it seems to me that a person has or does not have a right to bail and that that should not be determined by potential for a mob rule situation in which people threaten public disorder as a result of that right being granted. What is your opinion on that?

Mr Lunny: The important thing about bail, almost regardless of the Justice Bill, is that it is usually determined by an experienced judge after hearing submissions on each side from legal professionals who are often solicitors but sometimes barristers. The risk of the person who is seeking bail reoffending always has to be taken into account. As you probably know, that is a common reason for bail to be refused. A less common but not unknown feature in adult bail applications is where someone is refused bail because of a danger — a risk — to them. As to what that risk could be caused by, that could be myriad things. Sometimes, it will be because of the nature of the crime of which they have rightly or wrongly been accused. Sometimes, those sorts of issues — they do not arise often — can be catered for in the conditions that are set. In some cases, particularly cases of the type that you mentioned, that is a very difficult task for judges. It is not immediately clear to me. We can take that away, consider it and get back to you on it in a paper.

The Chairperson (Ms Bunting): We need to get some interpretation from the Department as to how it envisages this. I am concerned. If somebody has a right to bail, it should not be a mob that determines or influences whether they get it. I feel that that might be a rights issue.

Ms Kiley: You are right, Chair. On an objective reading of the clause, it could encompass both those things that you have suggested: the risk that the child would cause a serious threat to public order, or the risk that there may be some other serious threat emanating not from the child but relating to the fact that they are receiving bail. I agree that there is a potential interpretative issue and that, maybe, it needs to be clarified with the Department. I agree that, as drafted, it is, perhaps, capable of meaning both those things.

The Chairperson (Ms Bunting): If it were to be interpreted as, "There would be a serious risk", or "There would be a risk to public order as a result of the child's being released" —.

Ms Ferguson: That would impact on their human rights.

The Chairperson (Ms Bunting): Is that just?

Ms Kiley: It could be very broad. Ultimately, as the chair said, these are matters that judges have to determine, and experienced judges are well aware of the types of issues that may arise. It is a matter for a judge to consider all the circumstances of a case.

The Chairperson (Ms Bunting): That is fair enough. Thank you very much, Denise. Connie, do want to come in on this point?

Ms Egan: Yes, it is on something in the section that deals with the custody and bail of children. It is not on the exact same point, Chair, so I am happy to come back to it at the end.

The Chairperson (Ms Bunting): We will deal with that section now, so go ahead.

Ms Egan: My apologies for not coming in when we were coordinating the questions.

I was interested to see, and I appreciate that you included, your support for the minimum age of criminal responsibility being raised from 10 to 14. I support that, as do witnesses who gave a presentation to the Committee last week. We heard from another organisation that it would like the age to be raised to 16. You have said that you support raising the age from 10 to 14. Most people agree that 10 is far too young. I would appreciate hearing a bit more about your rationale for settling on 14.

Mr Lunny: We looked at the Bill, of course. We are aware of some of the arguments on both sides, but we are of the view that it needed to go up, for a number of reasons. Obviously, there is no such thing as an average 10-year-old, an average 14-year-old or an average 16-year-old, and 14 appears to us to be reasonable. That is not to say that there are not arguments for it being a little higher or a bit lower. We believe that the Department pitched it at a reasonable point.

Ms Egan: OK.

Ms Kiley: We provided a response to the Department's consultation on that. I am sure that we could provide it to you, if it would help to explain the rationale.

The Chairperson (Ms Bunting): I think that we have it.

Ms Egan: If the Committee is content with that, yes. It has come up two weeks in a row when we have been looking at the Bill, so it might come up again as something that was not included. It would be interesting to have your response. I would appreciate some more information on that.

Mr David Mulholland (Bar of Northern Ireland): The main aim that we were driving at was alignment with the principles of the UN Convention on the Rights of the Child (UNCRC), but our paper dealt with that. We can certainly provide it, if it would be of assistance.

Mr Lunny: If it does not answer all the questions that you have, or, as is often the case, the questions that might arise after you have read it, we will have no problem trying to answer those.

Ms Egan: I appreciate that, thank you.

The Chairperson (Ms Bunting): You alluded to why it is not included in the Bill. I suspect that the reason that it is not included is because there was no political agreement around the Executive table on it.

Mr Mulholland: Yes.

The Chairperson (Ms Bunting): A number of us, who are of a certain age, will recall the Jamie Bulger case. It was traumatic for our nation as a whole to read, watch and see what had gone on there. That is why there are arguments either way. People are conscious of what can happen, even involving young children. We will try to figure that out as we work our way through.

No members have anything on no bill. I will take general issues before we head into taxation. Doug, you had questions on general points.

Mr Beattie: It is a general point, and it is possibly a little bit off-topic, but I hope that you can see how I am correlating the two. It is regarding the legal action that is taking place. I will not get into the argument of whether you should or should not be taking that action, or anything in that regard. However, there is no delivery of legal aid cases now. There are 17 cases involving vulnerable people — some are suicidal, and some are at the end of life — that are now not getting through the courts as they should. When nurses went off on strike, they had a minimum standard that they would still provide. Do you think that the legal profession should have a minimum standard and that it should be contained in the Bill?

Mr Lunny: There are a number of aspects to your question. Whether a minimum standard of delivery of work should be imposed on any group of workers — professional or not, and whether you are a nurse, barrister, fireman or someone working in a data centre or a factory — is a difficult question and one that will elicit a lot of strong views. We do not have a formal position on that. We have not been asked to consider that before. I do not think that it ought to be in the Justice Bill, and it is not.

As a matter of principle, looking at the facts, our members have withdrawn from one portion of the criminal justice sector. Crown Courts are not where the majority of cases are; it is where the most serious cases are, but not the majority. They have withdrawn from one part of one sector of criminal justice for a defined period. It was an absolute last resort. As you know, and as you have heard me say before, it was not done lightly; it was done as an absolute last resort by a group of people who are well aware of the seriousness of the cases and the effects that those cases have on victims, accused persons, jurors and the legal professionals who appear in them through the vicarious trauma of their doing case after case of that type.

Our hope is that we can find a resolution to the dispute. That is not in my power or that of the Bar of Northern Ireland. It will require a number of parties to sit down and engage meaningfully for that to happen. As I say, this was avoidable. It was a last resort and it is time-limited, as things stand. The other —.

Mr Beattie: Donal, may I just come back on that? I reiterate that I am not being critical one way or the other on the issue: please do not think that I am. I am looking at it as a public service and a public service provider. I look at what happens elsewhere, where they provide a minimum standard when they go out on a justified strike. I am not saying that the strike is not justified; it clearly has merit. That is not the case that I am making; the case that I am making is that there can or should be a minimum standard. If we have, for example, somebody who is close to end of life going through a case — I hear that we have such a case — a minimum standard could ensure that that case could go through the courts.

I know that it is not in the Bill and that you say it should not be in the Bill. Maybe it is wrong of me to ask, therefore, but I am just trying to get a sense from you of whether you think that there should be that minimum standard.

Mr Lunny: That would have to come in a much broader conversation. The action to date has taken place across two months: January and February. The first week in January and next week are weeks when the courts do not generally sit in those types of case. Therefore, the delay that has been caused is not even two months. Our system in the Crown Court is beset with much greater structural delay than that. We and, I expect, you want to see that addressed. We want to see cases progress much more quickly and fairly through the system.

You asked whether there should be a minimum level of service that solicitors or barristers have to provide. I am more than happy for our Bar to have that conversation, provided that it is in the context of whether there should be a minimum level of service that the Department of Justice has to provide. I am perfectly happy, Doug — or, Mr Beattie. This is not the appropriate forum, obviously, to talk about the facts of any individual case, but I am absolutely happy to talk offline about the facts of an individual case, if there is a concern.

Mr Beattie: Thank you. "Doug" is always fine, by the way.

The Chairperson (Ms Bunting): We can certainly explore some of these issues in a bit more depth when the Bar returns to talk about the access to justice reform programme.

Donal, you raised the issue of delays, which seem to have plagued the system. A lot of it is pinned on COVID, but there were issues long before that. It would be helpful to hear your views on what might be the solutions to those issues. We can return to that. We will no doubt see you soon to discuss some of those issues.

Justin, you had something general, too.

Mr McNulty: Yes, Chair. Thank you, Donal, Denise and David, for your evidence. Has the Bar taken any measures to mitigate the most severe risk caused as a consequence of strike action?

Mr Lunny: The Bar has done a number of things. As I have said, strike action was a last resort. It took other steps first. Many of our criminal Bar members wanted to take that type of action in the summer of 2023. They restrained themselves, even though they had good cause at that point to do it. They engaged bona fide in the review under Judge Burgess. They gave up huge amounts of time and provided a lot of evidence, as did our solicitor colleagues. A huge amount of collaborative work was done under the stewardship of an independent expert — a man with huge experience of the Crown Court as a judge. He produced his work in August, and, as you know — you have heard my saying it before — the Department did not publish it to anybody, including you, as the Justice Committee, until December. At that point, because of the direction of travel that the Department set, the Bar felt that it had no alternative but to take action. A number of different types of action were discussed. Many of the options that were discussed were more severe than the option that it voted for, which was to withdraw for January from Crown Court cases. We hoped that that would be enough, but it was not; it did not prompt meaningful engagement in January, so the Bar took further, time-limited, action. Again, more serious action was discussed, but it chose not to take that so that it did not affect everybody. It was time-limited. The Bar has been restrained in what it has done. It has thought about the victims. However, it is important to make this point: there may be short-term disruption. We are acutely aware that that causes some delay to some trials, and, obviously, that affects some victims, some accused persons and some witnesses.

The system being structurally underfunded and in a crisis is a much bigger problem. That will cause long-term harm to victims. If people are not paid properly to represent defendants in criminal trials, you will have verdicts that are unfair, miscarriages of justice and people wrongly convicted. That leads to appeals, acquittals — sometimes, acquittals of people who are guilty and ought to be convicted — and retrials, none of which is in the interest of any victim. Yes, what the Bar has done causes short-term difficulty, but the motive behind it is to remove a much bigger and much more damaging long-term problem.

The Chairperson (Ms Bunting): I am acutely conscious that we are going to spend time on that and on the programme, the strike and progress, and your views on it. I am eager, members, that we do not get into the minutiae of that, because this evidence session is about the Bill. Inevitably, issues will arise, but I do not want us to get into the machinations of all that, given that we are going to have a session specifically on it. We should allow the Bar to come and make its opening statements on that issue, and then we can ask questions specific to that programme and the strike action.

Justin, if you intend to follow up, I ask you to bear in mind that there will be a dedicated session on the access to justice issues.

Mr McNulty: I appreciate that the Bar is in a quandary, and that there are multiple issues with the Department and the system that put the Bar in such a difficult place. However, there are people who are left in vulnerable positions because of the action. I note Donal's point that it could have been avoided, and I would like his perspective on how it could have been avoided.

Mr Lunny: It could have been avoided by the Department engaging meaningfully with us and our solicitor colleagues much earlier. That is the short answer, and I can expand on that in a separate evidence session when we come to it.

Mr McNulty: That is fine; thank you. I have another question on the code of conduct, Chair, but I will ask that later, if that is OK.

The Chairperson (Ms Bunting): Go ahead with your code of conduct question, Justin, because we are about to move into taxation.

Mr McNulty: OK. On the Bar's code of conduct, of how many cases is the Bar aware of professional misconduct in relation to fees marked above the level that they should have been?

Mr Lunny: I do not have exact figures for you. We can produce them. We have a system of robust self-regulation. The professional conduct committee of the Bar is entirely separate and hermetically sealed from the Bar Council, so I cannot give you such figures off the top of my head, but we can obtain them. I can tell you, happily, that referrals for such cases and complaints are small in number, but they do occur. When they occur, if there is a prima facie case of misconduct under the provision that I quoted — statement of principle 30.2 — they are prosecuted before a disciplinary panel. There are at least a few of those cases alive and ongoing in our professional conduct system.

Mr McNulty: Donal, on that robust self-regulation and your code of ethics of, "Do not break the law", and, "Do not bring the Bar into disrepute", how would a member of the public bring to the Bar concerns about the actions of a particular KC who is using their knowledge of the law to shield and protect themselves from punishment for potentially criminal behaviour?

Mr Lunny: The first important point to note, Justin, is that our code of conduct does not state, "Do not break the law"; it is much more rigorous than that. Obviously, the code of conduct that applies to all of us as citizens is, "Do not break the law". If a barrister or a solicitor breaks the law, there will be code of conduct and other consequences for them. Our code of conduct imposes upon us obligations that are much more rigorous than the obligations in the general criminal law.

The Chairperson (Ms Bunting): You are officers of the court really.

Mr Lunny: Yes. We have duties to the court and as independent legal professionals. I am happy for you to see a copy of our code of conduct; it is publicly available. It is front and centre on our website. You will almost certainly have a copy of it in your Library in the Assembly. It evolves all the time. Say that you have a constituent who wants to complain about a barrister. The code of conduct is easily found on our website, barofni.com, which is the first thing that comes up if you search for "the Bar of Northern Ireland". There is a form that people can fill in. There are staff who deal with complaints from any layperson; you do not need a lawyer to make the complaint for you. Last year or the year before, proactively and ahead of many of our analogous professions, we altered the standard of proof in respect of professional misconduct from the criminal standard to the civil standard. That makes it easier for someone to be convicted of professional misconduct. That is one of the reasons why I use the adjective "robust" when I describe it to you.

Mr McNulty: Thank you, Donal.

Mr Lunny: We can send you a copy of the code and the relevant web page if that would assist.

The Chairperson (Ms Bunting): A link would probably be fine. Thank you very much, Donal.

I will move fully into taxation. I appreciate that you touched on it, Justin. That is good, because you asked one of the questions that I was going to ask. I will strike that one off my list.

Miss Hargey: Thanks very much for coming in. We are particularly looking at the taxing master. The Department said that what it put in the Bill is part of its responsibility for managing public money. It is interesting that you made the point that that is also a duty of the taxing master. We have asked the taxing master to come in and present to the Committee, because the Bill is a technical piece of work, and we are not across all of it. It would be useful to hear, from the taxing master's perspective, about the checks and balances that it does in managing public money.

Donal, in your comments and in the paper, you outlined the potential for a two-tier system, and you gave one example. Will you expand on that? The other issue, which you mentioned in your opening remarks, is that clause 28 could be seen as a grab by the Department to take control of taxation. There is the issue of independence and the potential for there to be decisions or outcomes that the Department does not like. Will you expand on that as well, to give us a flavour of what you mean?

Mr Lunny: As you know, lawyers have certain skills. We can be good at looking at something and saying, "Well, here are the short-term consequences and ramifications of that. We can conceive of longer-term or indirect ramifications". We look to see what precedent something might create. Here, however, you have a situation in which — if you do not personalise it — a Department is obliged to submit itself to an independent judicial process for one facet of its responsibilities and duties. It clearly does not like the outcome of that process. It does not like what that judicial figure is doing, so it is saying, "Let us take that part of our duties and responsibilities away from that judicial process and do it in-house". If you think of it in those bland terms and put some other Department or arm's-length body in place of the Department of Justice — put in the police, HM Revenue and Customs or somebody else — it is a disturbing potential precedent that, if you allow it here, might be relied on in some other future context. We know that one reflexive reaction to that reform is to say, "Lawyers' fees: who cares? That does not affect me". We say, "Yes, it does. It affects you because it could create a two-tier system". I can expand on that separately, but you should be concerned as a citizen or as an MLA about its potential ramifications and the precedent that it could set for other state bodies that do not like the outcomes of independent judicial processes that they are obliged to put their work in front of.

On the two-tier system, we have said before, both in writing and in venues like this, that the great benefit of our publicly-funded legal aid system is that it helps prevent a two-tier legal system. It helps prevent our legal system being like the legal system in the United States of America. It is important to note that, if lawyers always voted only with their pocket, they would vote for a system like the one in the United States of America — a two-tier system makes most lawyers richer. We do not advocate for that, because we know that our system is better. It is better for citizens. Taxation is an important part of that.

If legally aided people's fees were not subject to taxation but were fixed by some scale, that would, undoubtedly, in many cases, be lower than what taxation produces, that would deter some lawyers from doing legally aided work. This is where it gets more arcane and complicated: there is a principle surrounding costs and your entitlement to recover your costs from the losing side in the case; the "indemnity principle". If I am legally aided, even if I win my case, the system, as the Department wants it to become, is one where, if I lost, my fees would

taxation, they would be paid on a scale that is lower. Then, if I win, you can expect that, when I put my bill into the taxing master, because I am not relying on legal aid because the losing party is paying, in my example, if the prisoner wins his case, the Department will say, "Well, you should not get any more on taxation than you would have taken if you had lost under the scale". Therefore, indirectly, it will affect what you can recover when you win, and that will create a two-tier system. It will deter lawyers from doing legally aided cases.

Given that we are here to talk about the Justice Bill, I do not want to go back to the withdrawal of services. However, we are already seeing it in relation to the Crown Court: younger people coming to the Bar who are incredibly bright and hard-working, many of whom have made huge sacrifices and incurred huge debt to get to where they are, are choosing not to become criminal lawyers. They are doing other types of work because those other types of work pay fairly. The start of the two-tier system is here. This will just speed it up.

Miss Hargey: That is great. Thank you.

I know that we are not going back to the legal aid stuff, but, obviously, it is time-sensitive because there is ongoing action. Your statement set out the frustrations about the lack of engagement. We have been asking questions about that of the Department and the Minister this week. I know that there were meetings on Tuesday. I would be keen to have another meeting, perhaps next week, for you to come back and look at the wider issue of the immediate strike action and finding a way to resolve that and to hear what the outcome of that meeting was and whether there are positive soundings as regards trying to move the situation forward in the short-term and also looking at the medium- to longer-term changes.

Mr Lunny: In fairness to the Department, there was some engagement with us and with our colleagues in the solicitors profession on Tuesday of this week. That engagement has started — finally.

The Chairperson (Ms Bunting): Your use of the word "finally" is interesting.

Ms Ferguson: I want to note for the record that I am a member of the all-party group on access to justice, which the Bar is part of the secretariat of.

Donal, you used the word "serious". You feel that inserting section 59A, through clause 28, would be a radical change and that the independence of the judiciary could be under attack in some respects. Will you expand on that a bit? Likewise, in your submission, you gave the example of what England and Wales attempted to do back in 2021. Given the fact that we are four years on, I would love to hear what the impact of that has been.

How does the sector feel about it? Is there any positive in moving from the taxing master to the Department's accounting officer when it comes to setting fees? Are there any advantages? There are, perhaps, three questions there.

Mr Lunny: I will take the last one first. In the explanatory and financial memorandum to the Bill, the Department refers to a principle that is known only to it, which is that, if it is paying, it decides what you get paid. That is not a principle that we are aware of. The principle that everybody is aware of is that, if you cannot agree the cost figure that is payable, it goes to taxation. Taxation is overseen by an independent judicial officer and is what we would call the "gold standard". If you cannot agree what the costs are, it goes to the taxing master who decides whether it was incurred, whether it was reasonable to incur it and whether the amount is reasonable.

As you heard me say in my opening remarks, the proof positive that it actually works is the point that the PAC thought that it could use to beat the professions with on taxation, which is that, across the board over a four-year period, fees were reduced by 13%. We would say that that is absolute proof that the gold standard system works. It makes sure that people are not overpaid.

I do not know whether Denise has anything to add; I cannot remember the third question.

Ms Kiley: You asked for a general impression; it follows on from what Donal just said and what he said in his remarks. There is no evidence that the taxing master is not doing the job properly. We have given you some statistics about that. In that particular context, it is very hard to see, then, the justification and rationale for doing this, and particularly now, because we cannot see what the Department has to fear from an independent judicial officer doing their job properly. As we said, some fees go up and some go down on taxation. That is appropriate and is as it should be. There is a lack of justification, we feel, for taking this step and, in particular, taking it now without having outlined what there is to replace it.

Ms Ferguson: You mentioned England and Wales and what happened in 2021.

Mr Lunny: They did not proceed with those reforms because they met with resistance. They still have the system of taxation as we know it. They call them a "senior costs judge" and have various other costs judges, but it is taxation as we know it, though they have an alternative system where you can submit lower-value things without taxation. Everybody still has the option, however, to tax their costs. We have a short summary of what the position is in each of the analogous jurisdictions — Scotland, England and Wales and the Republic of Ireland and here. If you want, we can perhaps submit that to you afterwards.

I completely appreciate that not only are the public, no doubt, tired of hearing lawyers talk about fees but there is sometimes a perception, unfairly, that our profession and the solicitors' profession are resistant to any change. The reality is, of course, that we are not. Can the system be made better? Of course it can. They all can. There are some aspects of our system that work really well. The Chair has previously touched on the predictability of what fees will be and that helping with budgeting. We are open to exploring ways of improving that, but none of that requires a removal of taxation. To the extent that there are problems with things such as predictability, this is a massive sledgehammer to crack a small nut.

In what legal services call "money damages claims" — those are generally personal injury claims — we have a system where we have the Comerton scale. It is well-respected and recognised by the High Court and is approved of by the parties that pay, which are largely big insurers. It is a scale in inverted commas: it is derived by the Bar in consultation with solicitors and the taxing master; it is updated with inflation every couple of years; and it is a guide to what should be marked in most cases. Most people use it in most cases, and that introduces a huge degree of predictability. You still have taxation for the exceptional case, because obviously, sometimes, a case is exceptionally complex or important as a precedent but, in money terms, is not worth a huge amount.

Those cases can all proceed to taxation in the normal way, but, for most cases, most people take the swings-and-roundabouts approach of the guide that is the Comerton scale. It has been in place for a lot longer than I have been at the Bar. The Comerton scale exists in the money damages field, and it does not exist in other fields, but there is an issue that could be explored about whether we can do more to introduce greater predictability into the system. I would hate for you to get the wrong impression that it is lawyers against change. It is absolutely not; we are keen to explore every way in which we can make the system better without damaging it.

Ms Ferguson: I have a final question on the back of that. Departmental officials came to the Committee a few months back, and they said that there was ongoing work and liaison with the taxing master. Do you have an update on the considerations and models that departmental officials might look to?

Mr Lunny: No. We can only look to past behaviour as a possible guide for future behaviour, and the past behaviour has been in the narrow areas where they have imposed scales instead of taxation. The family care centre and the Crown Court have never lived up to their responsibility to review those figures, which is why you have heard me say that, on the Crown Court scale for solicitors in counsel, fees were set in 2005 and have never been increased. If the Department comes saying, "Trust us, we will set a scale, and we will review it", you will forgive us for not placing any faith in that type of arrangement.

It does not have the flexibility to deal with the exceptional cases. As you probably know, not all cases are the same, and some cases that may not involve the most serious criminal offence, most serious family remedy or largest amount of damages can be very time-consuming, very legally complex and of huge value in setting precedent. We do not know what their alternative is, nor, more importantly, do you. You are being asked to write them a blank cheque. If you look to the end of the Bill, you see that, once the provision is in law, it is the Department that decides when to commence it, not the Assembly. It surely makes sense that it is, at least, an informed debate where the Committee is presented with the alternative or alternatives and can make an informed decision about whether to enact clause 28 or not.

Ms Ferguson: Thank you.

Ms Egan: Apologies, Chair. Ciara jogged my memory: I am also a member of the all-party group on access to justice.

The Chairperson (Ms Bunting): Nearly all of us are.

Ms Egan: If that is a declarable interest, I declare it now at the outset.

Thank you for your briefing. I am quite new to the Committee, and a lot of what I am learning about the system was a learning curve for me, especially about the taxing master. We need to remember that it is a social security; it is about enabling access to justice for those who need it. It took me a while to get my head around the role of the taxing master, and I appreciate the information that you have brought today.

You mentioned that the taxing master had reduced bills by 90%. The figure is from a PAC report. Do you recognise and accept that figure?

Mr Lunny: Yes, but it is very important that we say it in precisely the right way. He has not reduced bills by 90%; bills have been reduced in 90% of the cases —

Ms Egan: In 90% of cases. Apologies.

Mr Lunny: —that have been considered in that period.

Ms Egan: Overall, they have been reduced by —?

Mr Lunny: Thirteen per cent.

Ms Egan: Is that an average of 13%?

Mr Lunny: Yes.

Ms Egan: Am I right in saying that, from your perspective, that is evidence for you that the taxing master is doing their job robustly because they are changing the bills in 90% of the cases?

Mr Lunny: Absolutely. It shows that it is not a rubber-stamping process, where lawyers put in their bills and someone just says, "Yes, that is fine", and there is no scrutiny. To be honest, rather than hearing that from a vested interest, it might be better put to the taxing master, who can give you an objective explanation of how the process works. As I said, we consider it to be the gold standard. You have an independent judge. If it is a legal aid fee and legal aid taxation, the independent judge is duty-bound to protect the legal aid fund, precisely, as you said, because it is part of the welfare state and the money belongs to us all. We see that as the gold standard. Taxation is available to everybody else, so, if the Department takes a case against somebody and wins, its lawyers can have their fees taxed. It is available if someone wins a case against the Department of Justice; for example, if the Department of Justice makes a procurement mistake when buying something for the Prison Service that might run to millions of pounds, it is sued in the commercial court, loses and does not like the fees that the winner's lawyers are marking, it can have those taxed. The Department will still have the benefit when it is the Department's money and cases, but that will be denied to the people who are representing applicants, plaintiffs and defendants under legal aid.

Mr Mulholland: I will add a small piece of context about the history of taxation. The Committee will certainly be familiar with issues of payment delays and fees. It would not have been unusual for somebody, rather than appealing a decision, which they could do upon taxation, to just accept the taxation decision. Why would they do that? They did it because they had already waited so long to get their fee determined and the work was of such vintage that they needed to get the cash flow. I could not say to what extent that featured in the statistics that the Public Accounts Committee was looking at, but it is a common feature of the system that people are sometimes notified about a reduction on taxation and they have the option to appeal but they forgo it, even though they may have a strong case, because they need the cash.

Ms Egan: I think that the Committee has said that it would look into the taxing master's role a bit more.

May I have one quick follow-up question? I mean this genuinely: does it cause you concern that 90% of bills are reduced? That seems like quite a high figure to me, especially when you also cited that your code of conduct covers excessive charging. Do you have any concerns that 90% of bills are being reduced?

Mr Lunny: I do not, partly for the reason that David has mentioned. I do not have serious concerns for a number of reasons. One is the well-recognised phenomenon that David has mentioned. You put in your bill and wait four months to find out that it has been taxed and reduced by 7% or 8%. If you seek to have that reviewed, which is the first step, that takes time. The taxing master is one person, who is very busy and has a separate role as the judge who is responsible for the enforcement of judgements as well as his fee assessment role. By challenging a 7%, 8% or 9% reduction, you are putting the money further away in time from your receiving it. You do not get interest or anything on it. That fee will be the same amount when you eventually get it. Many of our members are pragmatic about that. They will say, "I do not believe that it was right for my fee to be reduced by 8%, 10% or 14%, but I can live with it. I am not going to challenge that. I am not going to take the extra time; a couple of hours to go round to the taxing master to a hearing to justify why that particular hearing needed a skeleton argument, ran into a second day, or whatever it might be".

The other reason for my not being concerned is that, if I were seeing many cases going to disciplinary hearings where people were having their fees reduced to the extent that they were being reported to the Professional Conduct Committee (PCC) and prosecuted, I would be concerned, but I am not seeing that. That very much shows that the taxing master is doing his or her job properly. Fees are being scrutinised and, if something cannot be 100% justified or there is a doubt, the taxing master is erring on the side of caution and saying, "I will not allow that fee". There might be one or two individual cases that might go to disciplinary hearings where people have been reduced by a very significant amount, but, as you can see, across that £70-odd million, it is, on average, a 13% reduction across a four- or five-year period.

Ms Egan: Thank you. I appreciate that. Any further questions probably stray into the wider access to justice piece, which we are following up with next week.

The Chairperson (Ms Bunting): Well, maybe next week.

It is my turn, guys. Thank you for everything that you have said so far. You will appreciate that this is a tricky area for us, and, from the outset, I want to say two things. One is that my position and that of my party is that we are very conscious that this is public money and that, around public money, there must be accountability and transparency. That having been said, we also believe that it is right that people should receive fair pay in a timely fashion for work carried out. The issue for us is finding the best way for that to happen in the system.

I will work through some questions. You provided us with a paper on brief fees, which is really important. The brief fees issue falls into the Bill but also falls into the access to justice reform issue. I am really not clear whether to ask my questions now or when you return. We will see how we go.

First, you have referenced the Northern Ireland Audit Office Comptroller and Auditor General and the PAC and their various reports. In the course of those reports, did they speak with you and consult you at the time?

Mr Mulholland: It was before my time, I am afraid.

Mr Lunny: We will have to go back and check.

The Chairperson (Ms Bunting): I appreciate that it was a considerable time ago.

Mr Lunny: One was, I think, 14 years ago, and the other one was nine years ago. We can go back and check. They certainly took evidence from the Legal Services Commission, as it was then, but I would have to go back and check to see what, if any, engagement there was with us.

The Chairperson (Ms Bunting): I appreciate that it was some time ago, and, to some extent, those figures are probably redundant, even if the principles are not.

We will have to do a piece of work on what the Department envisages as a replacement, the time frames around that and, importantly for us, the procedure for the regulations and whether it will be negative resolution or something that is brought to the House. That will be important for us to understand before we agree to anything.

I apologise: I have no glasses, so I can hardly see the things that I have written down. Please bear with me. The Department is in a difficult position, and it is not for me to defend the Department, which is well able to defend itself. When there has been a recommendation from the Audit Office and a recommendation from the PAC, it is very difficult for the Department to just set that aside. The Department has been here and given evidence and has said to us that part of the difficulty is that, with regard to fees and charges, it is opaque. I think that it is opaque and ethereal, even with your paper. We will come to that in due course. What do you recommend the Department does? It cannot just ignore the recommendations.

Mr Lunny: No, and nor should it, even if it has done for a long time in the sense that you are seeing a suggested remedy here to a problem that the Department says has been pressing for nine years or 14 years. We acknowledge, first at a very superficial level, that there is a degree of opacity around things such as taxation and brief fees that has simply to do with language. If the taxing master was called "the judge who assesses fees", that would be much more straightforward. It would not sound opaque. Brief fees are fixed fees for an amount of work that may expand or decrease with different cases. That is what they are at their heart. If I drill down into the PAC document and its predecessor, I see that a lot of the concern relates to predictability. That is why I made the point to Ciara and Deirdre, when they raised that issue, that we are not resistant to change, but this is a sledgehammer to crack a nut.

The Chairperson (Ms Bunting): It has let you down before. That is a question that we also need to put to the Department: if it is going to move to this, what guarantees is it going to give with regard to review of fees and timely payments? It has not been helpful with that in the past or regular with it either.

Mr Lunny: We would go further and say, I am afraid, that the best guarantee you can receive is a statutory obligation to review the scale. That is what the Department is currently under in relation to Crown Court fees, and it has not discharged it.

We would say — not to sound like a broken record — that it might be worth hearing evidence from the taxing master —

The Chairperson (Ms Bunting): The taxing master is coming.

Mr Lunny: — the Association of Personal Injury Lawyers or the Association of British Insurers and to ask them about the system in money damages claims, where there is a guide that is followed in most cases — nearly every case — the Comerton scale that introduces the key elements of predictability. Therefore, you know that, if I have a personal injuries case and this is its broad value, the likely amount that I will have to pay by way of a brief fee is this figure on the scale. If you are being sued and know the broad value of it, you know what your costs liability will broadly be. If someone tries to mark a lot more than that, you can have their fees taxed. That is a system that introduces a high degree of predictability and budget certainty for all those bodies in it.

We are absolutely not resistant to change. We are willing to explore how that type of predictability can be better introduced to other fields. However, this is an attempt to deal with a problem that is really to do with predictability and budget by radically altering the entire system, and that is completely disproportionate.

Mr Mulholland: You asked what the Department should do. There must be best practice about how any Department responds to Public Accounts Committee recommendations or recommendations from the Audit Office. I would imagine, based on research, that you explore the alternatives, build the evidence and evaluate the evidence and that you move to draft legislation only when, by consensus and evidence building, you have a clear way forward. Our point today is that this is not following that sequence. No one is saying that there is no right for the Department to look into this issue, but there is a way in which it should be done and a sequence in which it should be done.

The Chairperson (Ms Bunting): That is fair enough, David. That point has been well made today. There are issues that we will take up with the Department around that and time frames, reviews, uplifts and so on.

I am going to come back about the brief fees, because you have made a number of assertions. In your paper at 4.6, you talk about clause 28 and state:

I think that, to some extent, that is already where we are. We do not know how much time and value is placed on the skill of practitioners. Earlier, Donal, when you said, "We have a certain set of skills", I smiled because Liam Neeson came to mind.

Mr Lunny: That is the first time anybody has compared me or anything I have said to him. [Laughter.]

The Chairperson (Ms Bunting): There are a couple of things that I want to clarify. I want to go through some of the issues that I have with the brief fee. It seems to me that, sometimes, the fee is calculated on the level of the court, as opposed to the hours worked or the complexity of the case.

You stated that there are difficulties with hours worked, because somebody who is vastly experienced will get a case and be able to deal with it in a much shorter time than somebody who is inexperienced. I accept part of that, but it goes back to swings and roundabouts, because if there were, for example, a scale of set fees with a composite fee, that would favour the more experienced person, who would not have to spend hours and hours on the case.

I will work through some more points. You talked about experience, but, in some cases, the solicitor is more experienced than counsel, yet their fees are vastly lower — they are a fraction of counsel's fees — and they have overheads that do not necessarily apply to the Bar. It is important that we bear those things in mind. It was implied that fees are agreed in advance. I want to check this point: by and large, are fees for legal aid cases agreed in advance, or are they calculated at the end?

Mr Lunny: It depends, in part, on the case. Quite a few solicitors ask at the start, "What is your brief fee likely to be?" Sometimes you can give a pretty definitive answer, and sometimes you have to introduce a number of variables and say, "It will be between figure A and figure B, depending on X". Some fees are not decided until the end of the case, often because it is not possible to predict with any degree of accuracy the course that the case is going to take —

The Chairperson (Ms Bunting): I have read your paper, and I understand refresher fees and so on.

Mr Lunny: — as you know. Sometimes, as a barrister, when you start a case, you will receive instructions on something that is quite complicated, read four lever arch files of papers, consult the people whom you need to consult, look at the law — that might involve a total of three or four days' work on something that is complicated — and you write a very detailed letter of claim. All that work is done by the barrister after the solicitor has had an initial consultation, got the client to get various things together and sent it to counsel. At that point, there is a big baton-passing exercise. The solicitor will be busy doing something else. The baton passes to you. You may spend a number of full days working very hard on it. You meet the client. You prepare, for example, a pre-action protocol letter, if it is a judicial review, a commercial action or whatever. You put your best foot forward in that. Either the case runs for a year or two while the other side fights everything and takes all sorts of issues or, sometimes it happens that, three weeks after it has received the letter, the other side says, "We want to talk to you", and the case resolves.

It is almost impossible to predict at that stage which of those courses a case will run, so it would be wrong to say, "My fee is going to be this", because the case could settle and it would be an absolute windfall. There always has to be a degree of flexibility, but, as I said, the Comerton scale is a great example of introducing as much predictability as you can, with exceptions. You are absolutely right about the Bar and solicitors. The two professions complement each other. We are separate in that solicitors do a lot of work that we just do not do. We do not do conveyancing; we do not make people's wills; we do not hold client money; and we do not employ people individually in the way that solicitors' firms do. We are all individual, self-employed members of a library, with the economies of scale that come with that, but, equally, it is important to recognise that we do not have a business with goodwill that we can pass on or, in better economic climates, sell.

The Chairperson (Ms Bunting): We are long past that. We are some decades past it.

Mr Lunny: Yes. I know that the Law Society has done a lot of work on that in trying to change things.

The Chairperson (Ms Bunting): To be honest, we have been keen to hear from you separately because you are not one amorphous grouping. You have separate and distinct wants and needs.

Mr Lunny: But also overlapping ones.

The Chairperson (Ms Bunting): Yes.

Mr Lunny: We recognise that some things are absolutely best done by solicitors that we are not seeking to do, take or encroach upon and that other aspects are best done by us. Sometimes, you will be in a case in, say, the Court of Appeal where your brief fee is two and a half or three times that of the solicitor.

The Chairperson (Ms Bunting): It is sometimes much higher than that.

Mr Lunny: Quite possibly, but with the division of labour at that stage in a case, you might be doing 14 times the hours that they are doing depending on the type of case. Some colleagues come to me, and say, "My brief fee shouldn't be three times, it should be a multiple of that".

We have a system here that is not perfect; that is absolutely the case. We are all for improving it, but we say that that is not what this is in any shape or form. England and Wales have changed their system. We bored you in the access to justice all-party group about the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and the changes that were introduced then. One effect of that was to pile a huge amount of work that used to come to the doors of solicitors and barristers on to MPs, and, obviously, on to you here if those changes occur.

Our system, although it is imperfect, is still a lot better than theirs. One stark example of that is that they now have a whole industry that is involved in fighting about costs. Lots of barristers deal only with disputes about costs in cases. They have complex structures of no-win, no-fee cases and various enhanced fees. In that type of situation, where you take that risk, defendants pay a lot more in costs.

The leading textbook on costs is 'Cook on Costs'. When I came to the Bar, it was a book of about 300 pages. It is now more than 1,000 pages, and that is predominantly because of changes in how they pay and how they have assessed legal aid and various other structures introduced in England and Wales. That is just not the road to go down.

The Chairperson (Ms Bunting): That is fair enough. There are issues in what they are proposing, and I raised those with the Department. I understand why assessing on a case-by-case basis is necessary, but how will they ensure consistency? I have concerns about that. With the best will in the world, how will somebody in the Department who has not practised, or not practised for some time, ascertain the value and the hours that are necessary?

I get the complexities of the issues. I am just trying to tease them out. There is huge concern about brief fees, which is why I want to ask you about some other bits and pieces. Brief fees are not paid in the County Court or Magistrates' Court. Is that right?

Mr Lunny: They are paid in the County Court, where there is a brief fee for all civil and family cases.

The Chairperson (Ms Bunting): There are some places where the principle of a brief fee is not applied.

Mr Lunny: That is absolutely right. There are some types of work that people will do for an hourly rate and no brief fee. For example, if you were doing a civil case, an inquest, a judicial review or an employment tribunal for the Government Legal Profession, you would do that for an hourly rate as a barrister rather than for a brief fee.

The Chairperson (Ms Bunting): That leads me on to two questions. The first is this: why is a brief fee applicable in some courts and cases but not in others? Also, you mentioned the Government side. If a barrister undertakes a case where there is a brief fee but is up against, for example, the Government on the other side, their barrister does not have a brief fee. Where is the parity in that?

I am going back to the principle that public money is involved, so we need to understand. All in all, these are not small sums of money, Donal. I am aware of cases, but I do not want to raise them here, because people would be identifiable, so I do not want to go down that road. For every other service of every kind, wherever you look, there is a composite fee, an hourly rate or some kind of combination of the two.

I am not clear about why the Bar is, or convinced that it should be, different in either of those cases. Will you deal with those two points for me, please?

Mr Lunny: If you want some reassurance that brief fees are not a bad thing, you should look at the Sir Christopher Bellamy review in England and Wales, which is the English version of the Burgess review. That was done in 2021.

The Chairperson (Ms Bunting): That is helpful. Thank you.

Mr Lunny: In absolute short form, part of the outcome of his review said, "Brief fees are a good thing". They are predictable. They encourage efficiency. A grave risk with hourly rates is that they do not encourage people to be efficient with cases.

The Chairperson (Ms Bunting): I understand that.

Mr Lunny: Hourly rates are more of a feature of practice at the English Bar than they are here, but they can lead to huge costs in a case, as opposed to a fixed, more predictable fee.

That is one example. Another is that the Crown Prosecution Service (CPS) in England and Wales chose to keep brief fees rather than use hourly rates. Those are two recent endorsements of the brief fee principle. However, I absolutely accept that there is more that we need to do to introduce predictability and to educate.

The Chairperson (Ms Bunting): Why a brief fee and not a composite fee? Does that go back to the business of not knowing how things are going to —?

Mr Lunny: I am not entirely clear about what you mean by a "composite fee".

The Chairperson (Ms Bunting): Say that a certain type of case in a certain court will cost, roughly, £10,000 or £900. This should be on the record: you cited examples in your paper of what something might cost. There was reference to £10,000 and to £3,000 per day and so on. My initial reaction was, "Oh, wow. Are your words golden?". The other side of that coin, and I am aware of this, is that the hourly rate of consultants and accountants can be the guts of £900 or £1,000. Likewise, you have put in work and training to hone your skills. I am trying to understand and find the correct balance between fair pay and public money.

Mr Lunny: You mentioned the potential disparity as well. If you have a case where one side, which is maybe the Government, are paying their lawyers an hourly rate and the other side will be able to claim a brief fee, there could be a disparity. The Government Legal Profession or some big clients might decide, "We are going to instruct only people who will accept an hourly rate". That is their commercial decision. Sometimes, that hourly rate can be high and the disparity can be in the other direction in that the person who is earning the hourly rate earns more than the person who receives the brief fee. Maybe that is not the sort of story that you hear very often, but it definitely occurs. If there is a disparity in the other direction, it can sometimes be due to the fact that the hourly rate that the Government, for example, are paying may not have gone up for a long time. For example, in 2012, the Government Legal Profession introduced hourly rates instead of brief fees above the County Court, so in the High Court, employment tribunals and inquests. Those fees have not gone up since that time, in spite of, obviously, the fact that there has been quite a lot of inflation since 2012. That is nothing to do with legal aid, happily, but it is an issue. The disparity between what the plaintiff not acting for the Government gets and what the Government lawyer gets is probably due in part to the fact that the Government rate has not gone up.

The Business Services Organisation, which represents the health service legally, also has hourly rates and brief fees, depending on the type of work that a barrister does for it. Its hourly rates went up recently, so those are much healthier than the Government Legal Profession's hourly rates.

The Chairperson (Ms Bunting): Would it be better to have the same principle apply in all courts, so that either there are brief fees in general or there are not?

Mr Lunny: To be honest, in a perfect world, if you were designing a system from scratch, you might try to ensure that there is one system. There are, however, so many moving parts. For example, the state cannot control what everybody marks. Some clients will want to pay only on a brief fee system, and others will want to pay only on an hourly rate system.

Ms Kiley: It goes back to what Donal said at the outset about the potential for a two-tier system. It might be that, in the ideal world, all courts would be the same, but you would be able to control only the legal aid fund for those who are legal aided. There will always be clients who are privately paying throughout different courts and different tiers. It is very hard to impose a single uniform standard, because you will never be able to bind what private clients pay their lawyers. Inevitably, we will find that those who are willing to pay privately are able to access the best, most experienced and diverse group of lawyers. There is then a real risk that —.

The Chairperson (Ms Bunting): That justice becomes a privilege of the wealthy.

Ms Kiley: Absolutely.

Mr Lunny: Yes, the risk is that "access to justice" becomes a slogan and nothing more.

The Chairperson (Ms Bunting): You have been very generous with your time. I am grateful to you. It is important that we tease out some of those issues and understand all facets of the arguments. Thank you very much for that. Members seem to be content, as they do not have anything further to ask.

I thank each of you very much for your time. We will follow up with you about a meeting on the other issue.

Mr Lunny: Absolutely. As I said, we will send you through some of the documents that we mentioned, and if they give rise to any questions or requests for other documents, please let us know. We will see you again at some point in the near future about the other issue.

The Chairperson (Ms Bunting): Thank you very much indeed.