Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): Everybody on the panel, you are welcome. We are grateful that you have come to us at such short notice. This is an important topic, and we are keen to hear what you have to say, so thank you for accommodating us.

Members, we have with us David Lavery, chief executive officer of the Law Society; Peter O'Brien, the deputy chief executive officer; Brian Archer, chair of the access to justice group; and Pearse MacDermott from the Solicitors' Criminal Bar Association. Gentlemen, you are all welcome. On the basis that we do not have a written paper — we fully appreciate why not — we will allow you slightly more time to give us your opening remarks. That will better inform us and afford us a better opportunity to ask pertinent and salient questions. Over to you.

Mr David A Lavery (Law Society of Northern Ireland): Thank you very much indeed, and thank you for the opportunity to meet the Committee to discuss the Department of Justice's enabling access to justice programme, which was recently announced by the Minister of Justice. As the Committee will know, the Law Society is the professional body for the solicitors' branch of the legal profession. Chair, you have already introduced my colleagues at the table.

With your agreement, I will begin by sketching out some of the background, as it is relevant to what we are discussing. Three years ago, in February 2022, the gentleman on my immediate right — the then president of the Law Society — Brian Archer and I appeared before the Justice Committee to warn of an emerging crisis in access to justice due to a failure to update fees for legal aid work. At that session, we explained that solicitors would no longer be able to afford to do that work and that the result would be the emergence of what we called "legal deserts" where people needing legal help would find it difficult to find a solicitor to represent them.

Two years ago, in May 2023, when Stormont was still in limbo, we went to see the then permanent secretary of the Department of Justice, Richard Pengelly, and conveyed the same message. We explained to him that there was an urgent need for an immediate cost-of-living increase in legal aid fees and a fundamental review of the legal aid system. Regrettably, Mr Pengelly told us that he could do nothing for us without a Minister in charge of the Department. Finally, in February last year, we got a Justice Minister back, one who understands the legal aid system and understands that it is at the point of collapse and that access to justice for many of our citizens faces what might be called an existential crisis. Some three years after we warned about the emerging crisis in legal aid, we are pleased to see that there is a plan to do something about it.

The Law Society of Northern Ireland welcomes the Department of Justice's enabling access to justice programme. We are committed in principle to working with the Department to ensure that the programme results in improved access to justice for those of our citizens who cannot afford to pay for legal help. There will, of course, be much detail to work through over the next couple of years, but, in principle, we welcome what will be the first comprehensive review of publicly funded legal service since the devolution of justice in 2010, 15 years ago.

While we welcome the wide-ranging programme that the Minister has recently announced, we need to recognise that there is still a legal aid crisis that needs to be urgently addressed. The Law Society participated in the fundamental criminal legal aid review undertaken by Judge Tom Burgess. The evidence that we presented as part of that review demonstrates all too clearly that the legal aid system is at the point of collapse. The report — I have copies with me that you will receive this afternoon — called 'Viability of Criminal Legal Aid Practice in Northern Ireland', which we commissioned from the Hook Tangaza consultancy, shows clearly that solicitors can no longer afford to do criminal legal aid work. We are therefore at the point that an economist would describe as "supplier failure".

As you know, the criminal justice system depends on lawyers willing to represent people accused of criminal offences. Without the criminal defence community willing to do that work, the system would collapse. The report says that we are now reaching that point. Because of unprofitability, they cannot afford to do it. The report says that, basically, the work is being done increasingly by an elder cohort of, mostly, men who have been doing that type of work for all of their careers, and recruitment into those firms is proving problematic.

The Minister's immediate response has been constructive. She understands that there is a crisis; indeed, she must be tired of the number of times that I have sent her copies of the report, because, every time we write to her, we send it to her and ask her to be attentive to it. The Minister's immediate response is to increase all fees for all categories of legal aid work by 16%. It must be acknowledged that that is a constructive development. Unfortunately, when you read the small print of the Department's consultation, you find that the new fees will apply only to cases granted legal aid from May onwards. That means that cases currently in the system — there are literally thousands of them — will not be paid at the new rates. They will be paid at the current rates, and that will be too little, too late. We hope to persuade the Minister that the new fees must apply to cases that are already in the system. We understand that the Minister is open to reviewing this, and we very much welcome her willingness to do so.

We should also note that Judge Burgess's recommendation was that a 16% fee increase would be an interim increase pending the outcome of a comprehensive review of legal aid fees across the board. We understand that consideration of this in the Department is now at an advanced stage and that an announcement is expected soon. If that materialises in the form of an independently chaired review, it will help to underpin our confidence in the review process.

We also need to recognise that both the civil and family legal aid systems are also in difficulty. The failure to keep fees up to date has resulted in much of that work also becoming uneconomic, and there is an urgent need for a comprehensive review of family legal aid, in particular. That must be a priority for the Justice Minister.

In conclusion, where we are today can be summarised as follows. First, we welcome the recently announced enabling access to justice programme. We will work constructively on its implementation wherever we can. Secondly, it is vital that the Minister commits to the full implementation of the Burgess review recommendations. That means, in particular, an interim 16% increase in all legal aid fees that apply to cases currently in the system and an independently led, comprehensive review of all legal aid fees across the board. Thirdly, there is a pressing need for a comprehensive review of family legal aid, a sector of legal help that is also reaching a crisis point.

Chair, thank you for giving me that amount of time. That concludes my opening remarks. My colleagues and I will be pleased to assist the Committee in its deliberations this afternoon.

The Chairperson (Ms Bunting): That is great. Thank you very much for that. It is very helpful. Do any of the rest of you have anything to add?

Mr Pearse MacDermott (Law Society of Northern Ireland): Not at this stage, thank you.

Mr Lavery: It's very uncharacteristic, I should say. [Laughter.]

I have never known them not to have something to add.

The Chairperson (Ms Bunting): Everybody is very quiet. That is helpful.

Members, will everybody who wants to ask questions indicate now? You can then still add your names when we are on a particular area. Does anybody want to kick us off? Ciara?

Ms Ferguson: Thank you, gentlemen, for coming along. I have just a few questions. First, I assume that you have seen the current consultation. What are your thoughts about that consultation process, particularly the remuneration fees? Secondly, you mentioned the importance of the review of family legal aid: is there any glaring key area in relation to family legal aid, outside the remuneration aspect, that needs to be focused on?

Mr Lavery: In response to the first of the two questions, we obviously welcome the fact that there is progress now. We were frustrated that Judge Burgess reported at the end of August and it will be May before there will be any implementation of his primary recommendation. We have only just seen the consultation papers, and, having received those, we asked for an urgent meeting with the Minister because of the commencement date issue that I referred to in my opening remarks. If the new rules increasing the fees by 16% were introduced in the way that the consultation suggests, no one would see any benefit for at least another year because of the time that it takes for a case to work its way through the system. We asked for an urgent meeting with the Minister, and we put our concerns to her. I understand that she is willing to consider the points that we made to her.

There has been no announcement of any adjustment yet, but, as we said before, the Minister gets it, and she understood the point that we were making that we needed a more immediate impact on the 16% increase and therefore finding a way to apply that increase to cases that are already in the system would be of particular importance. We have argued, for example, that a possible date from which it should apply would be 23 August, which was when Tom Burgess presented his report. There may be other ways of approaching it, but that is the one aspect of the consultation that is of immediate concern to us, and the Minister was receptive to the points that we made and understood it.

I will ask my colleague Peter O'Brien to say a little about family legal aid, because that is the other pressing area.

Ms Ferguson: Just on that, is there any idea of cost regarding the cases that are in the system, even from August? Do you have an estimate, given that it will cost approximately £9·8 million to proceed with the 16%? Are we talking millions?

Mr MacDermott: We do. We met the Legal Services Agency (LSA), and we know that, from August, it will cost around £6·8 million to £7 million. From the date that the Minister announced the immediate increase in December, it will be around £3·8 million. There are obviously bits and pieces to be worked through in relation to that.

Mr Peter O'Brien (Law Society of Northern Ireland): There are also some slight complications as to what falls into scope with regard to cases that go back in. The LSA is of a view that cases that are completely closed and have been paid may not be the subject of any increase. You could have a scenario where you may have cases where bills have been submitted but not yet paid and a second scenario where work is still ongoing and the bill has not yet been submitted. It is not entirely straightforward, but those were the maximum figures that, the Department indicated to us, would be the cost of those two options. I think it was £3·5 million and £6·8 million. That was as if everything that has been paid where a certificate has been issued was to benefit from that, but the Department is not even saying that that is what it would pay at this stage.

Mr Brian Archer (Law Society of Northern Ireland): It seems unfair to practitioners who have represented cases after the Minister announced bringing in the interim increase. We are told that the 16% will take effect retrospectively, but it will apply only for cases that have not been adjudicated on by legal services. Somebody may have done their work and put their bill in, but, if somebody else who worked in the same time frame were to hang back and wait three months until the rate increase comes in and if their bill has not been assessed by that stage, they will benefit from it. It will lead to people deciding to hang back to get the increase and waiting to the last minute of the three-months' time limit to put their bill in to benefit from the 16%. The way that the DOJ has approached it does not make sense.

Mr Lavery: As Pearse said, we had a meeting with the chief executive of the Legal Services Agency, Paul Andrews. It is not without complexity, but we are confident that we can work through the modalities of it with Paul. We have a lot of confidence in his ability to find a way of making this work, provided that the Minister accepts that it should include cases that are in the system already, because you would not want the sort of distortions that Brian mentioned where people would hold back submitting a bill to benefit. Paul is well across that sort of detail, I think, provided that the Minister gives him the date from which he should calculate the fees.

Ms Ferguson: There are plenty of precedents across all Departments that they can look at.

Mr O'Brien: Ninety-three per cent of all family business, is contracted in the Family Proceedings Court, which is the lowest tier, so all of the private law cases where there are disputes about access and parental responsibility and those where the state intervenes in the public law start at that tier, and 93% of the cases stay there. The vast majority of that work is undertaken by solicitors. That work, effectively, is sourced in the Children (Northern Ireland) Order 1995. An hourly rate was issued at that time, 1996, and was described as a temporary rate that would be reviewed in six months' time. That rate has never been reviewed, so family lawyers are concerned that, in fact, the rates have remained unchanged. There were attempts to reform the system, but none of those worked.

The cases are now becoming much more complicated, with the complexity of our society. In 1995, we did not have the ethnic mix that we have or the issues that we have around addictions and stuff of that nature. I am old enough to remember what happened before the Children Order, where you turned up and there was a case and decisions were made with the absolute minimum of information. Now, it is a much more rigorous exercise, where more parties are involved. It is very much focused on what is the best route for the child. That necessarily involves more time, and, as I said, the issues have become increasingly complex — we have had the Human Rights Act 1998 — since 1995. More work is being done but still at rates that were set in 1995. That is why the family lawyers are so concerned about the absence of any progress in that area regarding an increase or review of their fees.

Mr Lavery: You can see that, in criminal, civil and family law, the consistent problem is the failure to keep the fees under review. The whole system was designed to allow regular upgrading and refreshing of fees, and failure to do that has brought us to this point. It is just a fact, and, hopefully, a reset is now possible through the reforms that are being announced.

Mr MacDermott: Before we leave your question, you had asked us for our views on the reform package in general and on the 16% in particular. The short answer is that it is not enough. It is not even close to being enough. It does not even scratch the surface. In the Burgess report, the judge identified the fact that, since 2016, fees have gone down by 61% when you take into account all the different cuts. It is important that the Committee understands the issue. You will hear the Bar talking about 2005 fees being set. The 2005 standard fees imposed were based on rates that were applied in 1992. In 1992, rates were set, and, in 2005

paid out and made composite fees. They have not changed upwards since 2005, but they are based on 1992 rates. Let us not even look at inflation from that date because it is considerable.

I say that it is not enough because, as Hook Tangaza deals with clearly, our profession has changed dramatically. It has changed to the point where we cannot recruit. We really cannot recruit. We cannot get young people to come into it. For instance, over 80% of those attending the Institute of Professional Legal Studies, which is where the apprentices are, are with non-legal-aid firms. Fewer than 20% of apprentices are doing legal aid work. Where is the future?

We must fix the system, by which I mean structural change and reform. Hilary Benn is keen on reform, so let us give him some reform. We can do reform if it is funded properly. It has to be funded properly. An immediate input is needed, and 16% is not enough; we need a bigger input. However, we need the reform for a properly funded criminal justice system. Otherwise, we will have no solicitors doing that work. You may well ask, "Who cares about solicitors?". It is not about solicitors' firms being in practice. If we are not there, there is nobody to do the work, so, when your son or daughter gets arrested, there is no solicitor to do the work. When you need to get protection from a violent partner, there is no solicitor to do the work. That is the reality.

It is an age profile. I may be very young — I may look very young, but I am not very young, trust me

—

The Chairperson (Ms Bunting): You are so smooth. [Laughter.]

Mr MacDermott: I did not say that I was good-looking, which is a

but that is another story. [Laughter.]

The profile is that I am now of the age of those who do this work. There is literally nobody coming behind me, so we need to fix the system and fix it fast, and we need an injection of funds to do that; otherwise the solicitor profession will cease to exist in legal aid work.

Mr Archer: I am slightly younger than Pearse but of the same generation. I will have been in practice for 31 years this year, with 23 years in my own firm. I had a secretary who retired in December: she had been with me for 23 years. She was 70 years of age when she retired; I had to let her go. I advertised and did not get anybody suitable applying to be a legal secretary.

You all have constituency offices and know the cost of them. You could not run your office on the income that legal aid provides. Mr O'Brien spoke of the Family Proceedings Court: it is £58 an hour. I have stopped taking on instructions for private family law cases. I was on the guardian panel. I do public law cases. The majority of those cases are transferred out to the higher courts, so you have a higher rate into the High Court. However, I cannot afford to take on instructions for £58 an hour. That is about 50% of my running costs, and I am not the only solicitor who has decided to do that.

Mr Lavery: It is a sort of withdrawal of services — a quiet quitting. People are just not taking instructions.

The other thing that we have to bear in mind is that the demographics of the profession have changed dramatically. Pearse made the point that 80% of the firms that are training solicitors through the institute are commercial firms or big corporates. The other interesting figure is that, last year, 72% of the trainees were female, and they are not going to want to go out to a custody suite at 2.00 am or 3.00 am. That is just not attractive.

Mr MacDermott: We do not want to go either, by the way

but we have to.

The Chairperson (Ms Bunting): Do you fear the walk from the car park as we do?

Mr Lavery: The Minister makes the point, though, that we have a responsibility as a professional body to see what we can do to support that type of practice. We have a consultation out at the moment about what we call "entry routes" to the profession. One proposal is to reintroduce an apprenticeship way of qualifying as a solicitor. That might be a way to get some people to go into firms such as Pearse and Brian have, where they would earn, learn and qualify at the same time.

Ulster University has just introduced an apprenticeship law degree, which is innovative. Somebody could work in a firm for four years and qualify as a solicitor rather than having to put up £10,500 for the fees for the institute. We are thinking about whether we could bolt on an apprenticeship module that would then get them fully qualified. At the minute, the Ulster University programme gives them a law degree but not a professional qualification. We are trying to encourage it and maybe Queen's University to look at bolting on an apprenticeship to qualify as a solicitor as well. That might help to some degree, but it will not change the demographic reality. My colleague tells me that all those young women in training have watched the TV show 'Suits' and think that that is what law is: the reality is quite different.

The Chairperson (Ms Bunting): They are destined for disappointment. [Laughter.]

Mr MacDermott: They certainly are.

The Chairperson (Ms Bunting): On the point with regard to the institute — this is important because the session is being recorded by Hansard — could you speak to us about the impact that it has had on firms being able to take in apprentices and about the business of having to pay them to go to the institute?

Mr Lavery: For many years, the Law Society was of the view that the year spent at the institute was as a university student and therefore the firms putting trainees through the institute did not have to pay them. It was a matter of discretion for the firms whether they would pay them or not.

It is a two-year training programme with one year in an office and one year at the institute. We told the firms, "You have to pay them when they are in your office, but, when they are at the institute, it is a matter of discretion". HMRC arrived on the scene in 2023 and said that it took a different view. It regarded the training as a form of apprenticeship that required payment of the national minimum wage to the trainees. That is, I think, the point that you are making, Chair. That caused a lot of problems because, generally speaking, I think, larger firms paid trainees at the institute as part of their attempt to recruit the most able students, but smaller firms probably did not pay trainees while they were at the institute or did not pay them in compliance the national minimum wage regulations.

We looked into that and took legal advice. We did a lot of work. We engaged EY consultancy to work with the firms. Our view now, I am afraid, is that HMRC is almost certainly correct in its assertion. The problem is that there is an enforcement period of six years, which means that any firm that had a trainee whom they had not paid in the previous six years would have to make the back payments for which it was responsible. We introduced a credit finance facility to help the firms that could not fund the back payment. We also introduced a hardship grant for any firm that could not quality for a credit finance facility. We provided grants for those firms that they did not have to repay. We weathered the storm.

Firms now understand that there is a requirement to pay their trainees for the year in the office and the year at the institute at Queen's and that they must pay them at least the national minimum wage. At the time, there was a lot of turbulence. Firms said to us, "We will not take any more trainees because we cannot afford to take them". Once people came to terms with it, they continued to take trainees, for the most part, and all the places are filled at the institute, but it is another pressure on a firm's profitability. They know that they have that additional overhead to pay.

That is another factor in why we are looking at the education consultation that I mentioned on the entry route to the profession. We are asking questions such as, "Should a student going to train at the institute require a training contract at all?". There are different ways of going about that. At the minute, when you qualify with a law degree, you have not only to get a place at the institute by passing its admission test but to have a training contract with a firm that is prepared to put you through two years of training. That firm knows that, if it is taking on a trainee, it will have to pay them two years of national minimum wage. We are looking at whether we need to retain the requirement for a training contract. You could do it slightly differently. Indeed, when Peter and I and, I guess, these gentlemen were at the institute, you did not need a training contract; you needed a law degree, after which you went to the institute and then looked for your training opportunity in a firm. No firm had to pay us to go through the institute in those days. We may need to go back to something like that. That is one of the questions that we are asking in our consultation to see how we can reduce the cost of training.

We also want Queen's to increase the number of places. There is a limit on the number of training places available. We have pushed it as high as we can for the physical estate that Queen's has, but we can train, at most, only about 160 people a year. I think that there is a plan for the institute to relocate to larger accommodation, which would allow the numbers to be increased. One of the reports that Hook Tangaza did for us stated that there is a greater demand for solicitors than the system produces. The demand is primarily in the corporate sector, of course.

The Chairperson (Ms Bunting): That is what we heard. We heard that very few people who go through the institute take on criminal stuff. They all head towards the commercial area, because that is where the money is. We also heard from students who were seeking to get into the institute that they really struggled to get placements. The smaller firms were saying, "We cannot afford that". Frankly, the message that we received loud and clear was that, if firms had the money to pay for a student apprentice, they would prefer to use it to employ additional solicitors.

Mr Archer: You cannot charge for an apprentice solicitor. They are simply a cost for you.

The Chairperson (Ms Bunting): It is to understand the impact of that on firms now.

Mr MacDermott: That is why I made the point about legal aid firms. Less than 20% are legal aid firms. Our margins are considerably less than commercial firms or government. That is why so many students who go to the institute have contracts with commercial firms that, effectively, can afford to take the hit. Generally, legal aid firms are smaller than commercial firms. They are not in a position to fund somebody for a year when they are not there generating any income. Even in the year when they are there, they are not usually generating an awful lot of fees. There are firms that will not or cannot afford to take on apprentices.

Another problem is that, even if you take on an apprentice, generally, you will find that, when they qualify, you cannot afford to pay them the wage that they can get in a commercial firm, so they leave you anyway. You spend two years paying somebody to qualify and then they move on to somebody else. There are ways around that and things that we are putting in place, but, in nearly all the legal aid firms I know that operate in the Belfast area, there are no apprentices coming through, because they cannot afford to take them on. It is as simple as that.

Mr Lavery: I am not contradicting what Pearse said, but that is why we are looking at a new type of apprenticeship: there is just nobody turning up to train in those firms.

The Chairperson (Ms Bunting): Clearly, recruitment is an issue; that is what we have been hearing. We had not heard that the problem goes beyond solicitors and that it also hits —

Mr Archer: Secretarial and support staff.

The Chairperson (Ms Bunting): — secretarial staff. It was useful to hear that, Brian.

Apologies, folks, I usually ask questions at the end, but there were a couple of bits there that I wanted to bring up.

Mr Bradley: How do the fees differ between here and the rest of the UK? If there is a difference, what needs to be done to align the fees in Northern Ireland with those in the rest of the UK?

Mr Archer: There is a criminal legal aid crisis in the UK. A lot of people cannot get representation in criminal firms. In a lot of Magistrates' Courts and Crown Courts, people will see the barrister only the day before their case. It is very much the junior members of the profession who do those cases. The backlog has increased dramatically. The UK courts have not dealt with the backlog properly. Our backlog has improved, but it is still expected to be 2027 before our full backlog is dealt with.

Mr Lavery: I would not look to England as an exemplar of a good legal aid system. First, in England, they cut a lot of cases out of the scope of legal aid, as you probably know. Private family law cases qualify for legal aid in Northern Ireland but do not in England and Wales. That created a huge problem. That ended up with people turning up to represent people who could not get a lawyer. Amateur representatives were coming into the system, and it has caused a lot of havoc. Another thing is that, in England, they use a contracting system. The Ministry of Justice has driven the price down. In Northern Ireland, any solicitor can do legal aid work, if they choose to. In England, you have to win a contract to do it. A contract gives you a certain volume of business, but the Ministry of Justice has driven the price down. It is a bit like the way supermarkets drive the price down once they have got the suppliers into the system. England's is not a good system. I would argue that Northern Ireland, although it has problems — you have heard a lot about them this afternoon — has been well served by the Ministers of Justice that we have had: David Ford, Claire Sugden and now Naomi. They have all tried to retain the scope of the legal aid system so that anybody who qualifies for legal aid can go to any legal representative. We have not messed about with the system in the way that they did in England, where they cut a lot of work out of the scope of the system. We still have, generally, a universal system.

The problems are more hidden. There are things like the financial eligibility threshold that you need to pass to get legal aid. There is a test. If you are going for civil legal aid, say, you have to show that the case is worth bringing and that your income and savings are below a certain level. That level has not changed in 20, if not 30, years, so people are increasingly unable to get legal aid. Twenty years ago, a school nursery assistant might have got help with a legal case, but, now, you basically have to have no income to get legal aid.

Mr Archer: If you have more than £3,000 in capital in the bank, even though you may be eligible for state benefits such as universal credit, you will not get civil legal aid because you have too much money in the bank: £3,000. If your disposable income is about £270 or £280 a week, you will not get legal aid. That is half the minimum wage.

Mr MacDermott: Whilst we are, correctly, critical of English system, its hourly rate is substantially higher than ours. In London, it is something like £500 an hour, and, in the outlying areas, it is £298 an hour. They are way ahead of our rates, but their system is rubbish. We need to ensure that our system does not become rubbish and make it such that people can access justice. Whether you live in a village in County Fermanagh or in a big town, you are entitled to see a solicitor, and you should not have to travel 50 miles to speak to a solicitor because they are the closest one with a contract for legal aid.

We have benefited from having a large number of solicitors in the community. I presume that everybody knows a solicitor. If you can access a solicitor, you should be able to access legal aid. We want to maintain that. We do not want to go to a situation in which you have contracting and a small number of firms doing legal aid. That simply does not work. We want to maintain what we have and to have a fair system.

Mr Bradley: Thanks very much. We should align the fees, not the complexities and the drawbacks.

Mr Lavery: England had a crisis on fees too. There was a major strike in England about fees, and they introduced —

Mr O'Brien: They also had litigation over the amount of the fees. There were government implementation difficulties. It was a bit like what happened here: a report was made, recommendations were offered, and the Government decided not to follow those. That ended up in litigation in the English High Court. One of our concerns, certainly on the criminal side, is that the Department has decided not to proceed with a number of recommendations that Judge Burgess made.

Mr Lavery: Hundreds of firms in England and Wales are refusing to take contracts. I think that the Law Society in England is waiting to see what the new Government do. A lot of the damage in England was done under the previous Government: the reduction in the scope of the legal aid system and the driving down of fees. There is some evidence that the Government in England now are more prepared to recognise the problem that was created, and there have been some improvements. It would be fair to say that the tone of the discussion in England is now much more sympathetic to the problem that was created by the previous Administration. I am not sure that the rates are any better — the legal aid rates, that is, not the private rates.

Mr O'Brien: There are serious issues in England and Wales with regard to advice deserts in particular areas of law. We have not quite got to that stage, but we are heading in that direction. In County Fermanagh, 16 firms are left, and not all of those provide a legal aid service now.

Mr Archer: In the majority of those firms, the partners or principals are middle-aged lawyers who, like me, are in their 50s. In five or 10 years' time, those firms will not be taken over: they will just close.

Mr MacDermott: County Fermanagh has no trains and no lawyers. It is terrible. Fermanagh always gets it hard.

Mr Bradley: We need an incentive scheme to bring young people into the business to specialise in legal aid.

Mr MacDermott: Absolutely. Well, we say that we do not need to incentivise them; we need to pay proper rates to solicitors that allow us to recruit. At the minute, we cannot compete with commercial firms and government. We do not have the funding through legal aid work, so we must increase legal aid to make it possible for firms to recruit and bring in young people. It is a good vocation. What we do is a good job, an interesting job.

Mr Archer: Every day is different.

Mr MacDermott: We want people to do it, but, if you cannot pay them properly, they are just not going to do it. It is as simple as that.

The Chairperson (Ms Bunting): It is a sustainability issue essentially.

Mr MacDermott: Sustainability and succession: those are the two issues.

Mr Bradley: It is a big worry. Thank you.

Mr Beattie: David and your team, thank you. I have to be honest and say that it is complicated, but it is really important. I have an awful lot of sympathy for your plight with regard to the fees, because they have not kept up with pay. However, I also have a lot of sympathy for a Justice Minister who is trying to balance her books and get legal aid under control. Northern Ireland legal aid in 2023-24 was £114 million. In Scotland, which has a population nearly three times larger than that of Northern Ireland, the legal aid bill for the same year was £151 million. David, can you explain to me why there is such a disparity?

Mr Lavery: We always say that you are not comparing like with like. There are aspects of our system that drive costs up. The Minister clearly wants to address those in the enabling access to justice programme. Also, we have, arguably, a slightly more litigious society. Not everybody who is in court is forced to be in court; people also choose to go into court with judicial reviews and so forth. Therefore, culturally, we are in a slightly different place. The Scottish Legal Aid Board has, generally, been aggressive in holding fees down. The fees in general here have not really been the problem. There is probably a higher volume per head of population.

Mr O'Brien: The other huge difference between us and Scotland is that about half of our legal aid budget is spent on family matters, and a significant proportion of that is spent on the public law aspect of family law. That is where, as I indicated, the state intervenes because of concerns over a child or because of something that has happened. The Scottish system is entirely different from ours, and, to the best of my knowledge, that is funded not through its legal aid system but through social services. Therefore, we are definitely not, on the family public law side, comparing like with like. That accounts for a significant proportion of our legal aid budget.

Mr Archer: Doug, if Scotland had an identical system to ours, its legal aid budget would be over £200 million.

Mr Beattie: I guess that that is a fair answer. The likes of me are trying to understand it. Transparency and understanding it are really important, not just for me as a legislator but for people out there. We want to understand how our Minister is trying to balance a budget.

I have asked this question before: would it be useful to go back to doing a league table of the firms and businesses that use legal aid and how much they get yearly? We used to do that and then stopped. Would that help with transparency?

Mr MacDermott: The Legal Services Agency still does it. It does not publish that information, but I think that there are plans to publish it. I am not sure how useful that would be in the sense that, at the time that it was being published, it led to outcry at firms earning x amount of pounds. However, when the costs and the number of cases involved were broken down on the solicitors' side, it ended up not being quite what it looked like. At that stage, there was a front page headline in the 'Belfast Telegraph' that some solicitors' firms were earning a million pounds, but that covered thousands of cases and the firms employed 25 solicitors each. You have to balance these things out. I am not sure that that information gives you a portrayal of the reality on the ground.

The Law Society and the Solicitors' Criminal Bar Association have no objection to the Legal Services Agency printing whatever figures it wants; we are happy to stand over all the figures — or lack of figures — that we get on this. We are happy for that to happen, but it does not help the discussion about what each case merits. You need to look at the amount of work undertaken by a solicitor in each case, the hourly rate that they are paid for that and what that generates. That is the key: what is the actual work done by a solicitor in coming to a conclusion of a case? As I said, we are happy for the figures to be published. I do not think that it would help the argument, but we are happy for it to happen.

Mr O'Brien: In the past, the information has always been on the top 100 firms receiving legal aid. We think that the details for legal aid to all firms should be published, because that will show the range that exists from the larger firms down.

On Pearse's point, previously, when the figures were published, an interesting question was asked under the Freedom of Information Act about the average cost for the pieces of work that the top 10 firms did compared with those of some others. The costs for the firms that appeared to benefit most from the system were, in fact, much lower than those of some others. As you indicated, it is complicated, complex and not straightforward.

Mr Lavery: We do favour transparency. We have indicated that. The critical issue is not the top 10 or top 100; it is the unit cost. The unit cost here bears comparison with anywhere else in the United Kingdom.

You also need to bear it in mind, Doug, that there is a higher level of proven social and economic need here, which means that more people qualify for the system. That is another material consideration. We are fully in favour of transparency and openness, because, at the end of the day, it is about access to justice, and it is public funding.

Although Doug expresses understandable sympathy for a Minister who has to balance the demands of policing, prisons, probation and everything else, the simple fact is that, once someone has been granted legal aid and the bill is submitted for payment, it has to be paid. The Department had got into a habit of not paying the bills for months. That was the subject of litigation that the Bar and the Law Society brought against the Department. That was how it managed its budget. It is not a secret: the Department said that to your Committee. I read it. It delayed paying in order to manage its limited funding, but the High Court ruled that the way in which it was done was not permissible. The Minister has responded and told us that the funding allocation for next year is a much more realistic reflection of the demand in the system. What she is trying to do with the enabling access to justice programme, I think, is to redistribute the money that is in the system. Funding will be reduced in some areas and may be increased in others. She is also looking at alternatives, such as specialist providers in areas like welfare and housing.

Mr Beattie: I will come back to you on two things. We are absolutely supportive of the rapid payment of government bills. It is in our manifesto that that should be the case, so we are absolutely with you on that.

I want to qualify the point that I made about the league table of legal aid firms. You are right that, once you have given legal aid, you have to be paid. That has to happen. It is more about understanding where legal aid goes and where it is directed. How much of it goes to the family courts? How much goes to legacy investigations? How much goes to the here and now or to future trends? People need to understand that. It helps with scrutiny.

I will ask one last question of you all, if I may, which I have asked before. Industrial action is ongoing. Should a minimum standard of service be provided, in the same way that nurses who are on strike still provide a minimum standard of service? What are your thoughts on that?

Mr Lavery: I heard you make that point to the Bar. Barristers have withdrawn their services; we have not done so and do not intend to at this time.

It is an interesting point, Doug. The closest that we have got to that is what are called "derogations". The Bar is in discussions about providing representation in urgent cases or where there is some other extenuating factor. The difference is that it is not a public service on which a minimum service agreement can be imposed. Barristers are private practitioners. Conceptually, it is slightly more difficult to think in those terms. We would have to be agnostic on it, to be perfectly honest. The main thing to bear in mind is the fact that we have not withdrawn our services. We have engaged with the Department, and, at the moment, our Minister is responding to the concerns that we have brought to her, such as the commencement date for the 16% fee increase that we discussed earlier.

Mr MacDermott: Doug, solicitors have not withdrawn their services, first, because we cannot afford to do so and, secondly, because we provide a front-line service. Going to police stations is a front-line service. People often forget that legal aid is part of the welfare state. You have benefits, health, education and legal aid. It is a right. We provide a front-line service by going to police stations every day and every night of the week. We are prepared to continue that level of service, because it is important for our clients to have access to justice and be represented and given proper advice. We recognise that and will always provide that level of service. It is important that we do that. That is why, at present, we have not withdrawn our services.

Mr Beattie: Fair enough. Thank you.

Ms Ferguson: You talked about family cases accounting for 50% of the legal aid budget and said that system changes are required. What are your thoughts on system change? There is an inter-agency approach to cases, whether it is with social workers or the PSNI. What changes to the system would reduce the investment that you have to make in those cases? What I am hearing is that it is difficult and is nearly left to the front-line solicitors, whether because of delays in reports from social workers or delays by the PSNI. I do not expect an answer now. I know that there will be a review, but it would be interesting to get more information on your views on system change.

The Chairperson (Ms Bunting): Doug, you spoke about a breakdown of how much legal aid goes to each aspect of the law. Do you want the Committee to write to the Legal Services Agency to get something on that breakdown? Would that help?

Mr MacDermott: It already publishes that.

The Chairperson (Ms Bunting): There we are. Then we can access that.

Mr O'Brien: Only recently, the agency published a lot of information to assist the Burgess review. There is a 50-page document, if you are interested, that looks through all sorts.

The Chairperson (Ms Bunting): We will be wanting a summary, Peter. [Laughter.]

Mr O'Brien: Maybe you want the slimline version of it.

The Chairperson (Ms Bunting): Yes.

Mr MacDermott: It would do no harm to write to Paul Andrews at the LSA and ask him for that breakdown, but the information is there.

The Chairperson (Ms Bunting): Doug, would you be happy with that?

Mr Beattie: Yes. That would be really useful, Chair. Thank you to the team for being amenable to that.

The Chairperson (Ms Bunting): That is great. Are members content that we do that?

Mr Dunne: Thanks, folks, for the presentation. It was interesting. Are the recruitment challenges that we have here unique to Northern Ireland? If not, where is the closest comparison? What lessons could be learned from other jurisdictions?

Mr Lavery: What criminal legal aid practice in particular requires is increasingly unattractive to Generation Z. Scotland had the same problem. The Scottish Government gave about £9 million to the Law Society of Scotland to pay for training opportunities in criminal legal aid firms because they could not get trainees, and it did not really make a difference. That is why we think that the apprentice option may be the better one.

Mr Dunne: That is interesting. Is there anything other than finance that will swing this in your favour, make it more attractive and get more people into the profession? I suppose that that is where the apprentice —

Mr Lavery: It is rewarding work. You will have to get out of your bed in the middle of the night to go to a custody suite; that is a reality. Brian touched on the fact that you cannot charge for a trainee.

Mr Archer: You cannot send a trainee to a police station.

Mr Lavery: If they adjusted it slightly, some of that out-of-hours work could be allocated differently. The work is inherently interesting. It is just that we are seeing a shift in who wants to be a lawyer. It is the same throughout Ireland and Britain. It is becoming a different demographic type of profession. I am not suggesting that women do not have an interest in criminal legal aid, but the reality of practising criminal legal aid is challenging. There is a lot of wear and tear, and I guess it is not compatible with some quality of life issues.

Mr Archer: To qualify, I spent four years at university and two years at the institute. The degree is now three years and two years at the institute. However, I had a grant, so I did not have any debt when I left university. Graduates now have maybe £30,000 or £40,000 worth of debt, and they have to start paying that off. They might want to go into a criminal practice and think that they would really enjoy it, but, as a newly qualified solicitor, they will get a salary there of, if they are lucky, £25,000 per year, whereas a commercial firm will offer them a minimum of £35,000 to £40,000 and, in some cases, £50,000. They will follow the money. In the PSNI, a few years ago, the starting salary for a police officer on graduation was £22,000 to £23,000: it is now £34,000, once they are qualified. If you do not offer proper salaries, you will not get the best people joining.

Mr Dunne: Yes. It is the same across Departments. I appreciate that. I sit on the Committee for Infrastructure. There is an ongoing debate in Infrastructure about recruitment challenges in the public sector versus the private sector. It cannot attract the right people into engineering posts. It is competing with the private sector. That ties in with what you say about the commercial stuff.

Mr Archer: Last week, I was at Magilligan prison to see a client regarding the parole commission. He has been there for four and a half years and is coming up to halfway through his sentence. There was a letter in the dossier from the head of psychological services in the Prison Service basically advising the parole commission that the prisoner needed one-to-one psychological counselling. That should have been done within the last 18 months of his sentence. It has not been done because the service has been unable to fill the post. It has advertised repeatedly and cannot get people to join the service. Therefore, the risk factors that were identified for that prisoner have not been dealt with in the prison regime. I do not think that he will be granted parole. If the work had been done, he would have had a good chance of being granted parole. If he is refused parole, we will have to put it back another year. The lack of resources in the criminal justice system affects its whole ambit.

Mr MacDermott: There is a point, Stephen, that is not the fault of the Minister or DOJ, for a change. Generation Z is at fault, because everybody wants to work from home. Everybody wants to have an easy life. Young people now think that they should start off earning £40,000 or £50,000 and drive BMWs: that is just not reality. I started off on £40 a week. That is what you have to learn. The difficulty with criminal legal aid, in particular, is that it is front line and involves direct contact and working with vulnerable and difficult people; people with mental health problems and people with addiction problems. It can be positively dangerous sometimes, which it was not when I started off, strangely. There is a whole issue about people wanting to do that type of work, because it does not offer the rewards that are offered for working elsewhere. It is vocational. We all started because we wanted to be solicitors to help people. I am just not sure that the job description lends itself to young people's wanting to do it these days.

Mr Dunne: Finally, I want to ask about engaging with young people in schools, and so on. Does the sector do enough on that? Could you do more? I know that, certainly, when I was at school, the legal route was seen as the very top level to which young people could aspire to go to university and get a degree.

Mr Lavery: Our head of engagement is looking at how we can be more visible in engagement with careers teachers, and so forth. Our consultation on entry to the profession has also been sent to careers teachers to see what their perspective is. They will have a lot to tell us about what is coming through and what people's orientation is.

Mr Dunne: It is about trying to establish whether it is down to finance. I suppose that the Department would argue that it is spending twice — more than twice — as much on legal aid compared with other parts of the UK and the Republic. It is for us to try to establish what the key reasons for that are.

Mr Lavery: I do not think that the Minister has ever been critical of that. I think that this Minister understands that there is a higher level of need. I think that she understands that it is part of the welfare system. She often describes it as such. It is a necessary social service.

Society has changed to a degree. Frankly, Northern Ireland still has small firms. As we have said, many of the firms that are doing this work are small. Furthermore, in the past 15 years, the legal economy in Northern Ireland has changed beyond recognition. When we all started out, all firms were small. A big firm had maybe 10 solicitors. Nowadays, the biggest local firm would have over 100 solicitors. It is a sign of success. Belfast has more large international law firms than anywhere else in the United Kingdom outside London. Those firms are competing for trainees and staff. Then, we also have what we call "alternative legal service providers"; banks and legal firms from London that are in Belfast doing work for international clients. All their work is done for international clients, so they are doing legal work from Belfast but not for Northern Ireland. They are able to pay a starting salary of £40,000 or £50,000. They are here competing. It is a good development. It is a great time to be a law graduate. You would go for a £40,000 or £50,000 job in a nice office in Belfast before you would take yourself out to a police station in the middle of the night.

Mr MacDermott: On that point is something that has been a bugbear of mine for many years. I remember talking about LEDU when I first appeared before the Justice Committee, which was a long time ago. Invest NI is spending hundreds of thousands, if not millions, attracting those firms to Belfast and Northern Ireland to give jobs to people whom we cannot recruit, and the money that they generate in profit — not in pay but in profit — does not stay in Northern Ireland; it goes elsewhere. They are charging London commercial rates for people working in Belfast. The system is not fair at present.

Mr Lavery: It is a very competitive environment. The head of legal in one of the biggest firms that we are talking about said that they are here for three reasons: a talent pool of very well educated young graduates, who have a good work ethic and do not expect a London salary. She said that they can hire three people for the cost of an equivalent person in London. That is a good thing. There are great jobs. That is a great driver of jobs. However, it has created such an uneven, unequal and competitive situation. The answer to that is not to stop them being here. They are a reality. If anything, they are growing. The answer to that is for us to go to Invest NI and the Department for the Economy and say, "You need to help fund apprenticeships for that part of the legal sector".

Mr Dunne: Has that been done?

Mr Lavery: We are in discussion, as I said. We published the consultation before Christmas and would welcome a chance to talk to you about it, if you are interested. We are trying to see what we can do to make entry into the profession in the more bread-and-butter areas attractive. Apprenticeships work best if they are funded by central government. Ulster University has been very imaginative at that. As I said earlier, it has those four-year law degrees by apprenticeship. It got funding for those from government, so we need to up our game in that respect.

Mr Dunne: Thank you.

The Chairperson (Ms Bunting): Members, I am conscious of time, because I still have quite a list.

Ms Egan: Thank you, gentlemen, for coming in. I appreciate it, and I appreciate the fact that you have framed what you say about access to justice as its being a support system and being for people, some of whom have been victims of horrendous crimes, who need access to justice. That has been really positive.

I was interested in what you said about sustainability and succession being the main issues. That is a huge part of the reforms. Reflecting on people of my generation whom I know, I want to touch on your comments about young people watching 'Suits' and being disappointed and young people wanting to work from home. I understand where you are coming from with that, but, when it comes to women doing this kind of work, you said that, especially with criminal work for legal aid, it is dominated by men; yet the figure that you gave for the institute was that 72% of the trainees were women. Obviously, there is quite a disparity there.

On Stephen's questions, you touched on the issue of pay and competing with larger corporate firms. Do you think that there may be a piece around conditions and how you are competing on terms and conditions with those larger firms?

Mr Archer: David is probably best to answer that. The Law Society looked at women in law. Whilst the majority — three quarters — of the cohort at the institute are women, in five years' time, it has reversed. A lot of them are away.

As for working in a law firm, when I started 30 years ago, I worked in a general legal practice; it was probably about 60% criminal law and the rest was civil law. There were two apprentices ahead of me. I was one of two apprentices that year. It was just continuing. There were lady solicitors as well, who were probably equal in number to men, but, when you qualified, it tended to be the men who stayed in the practice long term. I was in that practice for nine years altogether. The lady solicitor with me went into the public sector. That was 30 years ago. It tends to be that the public sector has better terms and conditions. It has flexitime. It has better holiday pay and, obviously, a better pension compared with the private sector.

Mr MacDermott: It is not that we do not want to give those facilities; it is that we cannot afford it. That is the problem.

Ms Egan: No, absolutely. That is part of the issue. What I am hearing is that you are struggling to compete with them. A lot of the timelines that you mention, such as finishing study, qualifying, leaving the institute and working in a firm for a few years, often correlate with when most women have children. You spoke about women not wanting to do the criminal work as much. The majority of childcare or other family care responsibilities falls to women, so asking them to get up in the middle of the night might be a much bigger ask than for someone who does not have those responsibilities.

Mr MacDermott: They are already up looking after babies. They may as well get up and do the police stations too. [Laughter.]

Ms Egan: If you want to try to sell that to someone who has babies —.

A Member: That may not be the best line to take.

The Chairperson (Ms Bunting): You were doing so well.

Mr MacDermott: I am only joking.

Ms Egan: I am not sure that I would want to try to sell that to a woman who has her hands full with looking after a wee one.

Terms and conditions are especially important. You will have better maternity, family and flexibility packages when you work for corporate firms. That will really impact on smaller firms.

Mr Archer: When my son was born — he is 26 now — I worked in a private practice. I wanted to take two days off: the day that he was born and the day that he came home. On the second day, I got a phone call from my boss to say that I was ripping the proverbial out of something and that I should get to work. My son made me a grandfather three years ago. The Inland Revenue gave him a month off.

Ms Egan: It is just horrible for anybody to go through that as a new parent.

The Chairperson (Ms Bunting): You cannot afford to lose people for a month.

Mr Archer: No. You cannot compete.

Mr Lavery: We did a big survey of trainee solicitors and training firms. One of the most frightening figures was that 72% of people who are training to become solicitors are female and, out of every 100 solicitors qualifying, 50% will leave private practice within five years. They do not necessarily leave law; they go into public-sector jobs, corporate jobs, charity work, youth work, NGOs and so on. Some leave practice altogether; I assume that they are mostly female.

Our consultation on entry routes to the profession has three limbs. First, how do you make the institute model work today for people who leave university with a lot of debt? Secondly, what about an apprenticeship option for firms that cannot recruit? The third limb is what I call a "returner programme" to attract back into private practice people who may have left for caring or other reasons. We need to make it much easier to come back into practice, because there is a huge talent pool that we are not really recognising. We have put one of our past presidents in charge of the returner programme — the woman who happened to say that they have all watched 'Suits' and that that has distorted their view. She has the challenge of bringing everybody back.

Ms Egan: May I ask one more quick question, Chair?

The Chairperson (Ms Bunting): Of course.

Ms Egan: It is on the institute. Is a training contract that is funded by a law firm the only route, or can you do the exam and fund that privately?

Mr Archer: You can fund it privately.

Ms Egan: Are student loans available for that?

Mr Archer: No.

Mr MacDermott: No.

Mr Archer: They used to be.

Ms Egan: They used to be.

Mr Archer: The Bank of Ireland used to provide them.

Mr MacDermott: There are no government student loans as there are for degrees.

Ms Egan: No student loan company will fund that.

Mr MacDermott: No. The fees are generated by individuals going to banks and saying, "I need the money", or going to the Bank of Mum and Dad.

Ms Egan: That is a much higher risk.

Mr MacDermott: You have highlighted something important, which is that this is leading to a situation whereby those who can afford to get the education get it.

Ms Egan: I was coming to that.

Mr MacDermott: That means that we are losing those who come from what would be seen as less well-off backgrounds. We are losing a whole lot of people, but we are losing those from less well-off backgrounds because they cannot afford to pay fees of £10,500 and cannot get a loan for that. If they got a loan, they would not be able to afford to pay it back, because they cannot get a job that generates it. It is a very difficult situation.

Mr Lavery: The Law Society's centenary was in 2022. We introduced centenary bursaries that pay £10,000 to students who find it more difficult to avail themselves of training at the institute because of their socio-economic background. There are small numbers of bursaries, but at least they are a step in the right direction. To go back to Brian's point, students leave university with huge debt, so to take on another training course and fund it privately, they can go only to the Bank of Mum and Dad to pay for it.

What I do not like about the current system is that, to get into the institute, you have to pass the admission test and get a training contract. Queen's ranks everybody who takes the admission test in what it calls the "order of merit". You can be high up the order of merit based on the marks in your admission exam, but somebody lower in the order of merit may leapfrog you and get the place because they can get a training contract, perhaps because they have contacts. That does not strike me as being right, so we are consulting on whether we should change that.

The Chairperson (Ms Bunting): It seems that working class people and the working poor are being hit by every aspect, not only in their aspiration to enter the profession but in their access to justice, because, if the legal aid crisis continues, access to justice will become the privilege of the wealthy.

Mr Lavery: At the minute, you can afford to go to law only if you are very wealthy or impoverished. That is not the way that the system was meant to work at all.

We did a survey on the background to the profession, and there are definitely under-represented groups. One thing that, I thought, was interesting was the very low reporting of people from the LGB community.

The Chairperson (Ms Bunting): The LGBTQIA+ community.

Mr Lavery: Yes. They were not prepared to self-identify in that way for our survey. That tells me that there may be something in the culture that is not receptive to that. There are a lot of lessons to be learned. We have surveyed ourselves into a flat spin over the past two or three years, but it has given us so much information and so much to work on to improve. The point that I am trying to make is that we are trying to do our best to make the profession accessible, but we will need your help and government's help to achieve that.

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

Mr Lavery: It should not have needed a crisis to get everybody's attention, but you should never waste a crisis. We have a crisis, and we need to do something about it.

Ms Egan: Thank you. That is brilliant, and that was the point that I was trying to make about access to the profession for everyone. Thank you.

Miss Hargey: I will try to keep it concise, because I know that time is running out. You touched on it, but I want to ask about the ongoing review and the interim payment, which, I know, does not go far enough but is a step in the right direction. Do you believe that the Department has been proactive in engaging with the sector on the issues over the last couple of months?

Mr Lavery: We all have our views. The Law Society is satisfied that we have had good engagement with the Minister and her officials since she made her statement on 2 December. There was an unfortunate gap between the end of August when Tom Burgess reported and that statement. That was a bit concerning and created a lot of suspicion on the part of the professional bodies. From 2 December onwards, with the announcement of the programme, the engagement has been absolutely fine. The Minister will meet us at short notice, as required.

Miss Hargey: I know that there was a meeting on 4 February. How many times since then has the Minister directly engaged on the issues? Obviously, there is ongoing strike action, so we would expect any Minister to try to intervene directly to avoid such action because of its consequences on service delivery. There was engagement on 4 February. Are you aware of any other direct engagement having taken place, either before or after that?

Mr MacDermott: There has been no direct engagement with the Minister since 4 February, but we have met her officials. The withdrawal of services and strike action is by the Bar at present. The engagement between the Bar, the Minister and her officials is a matter for them. There is a dispute in that the Minister has said that she has offered to engage and the Bar has said that she has not; it is for them to sort that out. From our point of view, since 4 February, we have met ministerial officials on two occasions and actively continue to meet them. We believe that that is the way forward. It is a process that requires, sadly, all too much of our engagement, but it has to be done, and we are, at present, content with that engagement.

The outcome of that engagement is the bigger issue. As you quite rightly pointed out, the 16% is a sticking plaster. It is not enough to resolve the current crisis. The engagement is such that we believe that we can get a satisfactory outcome. If we do not, we will have to look again at what is happening, but, at present, we believe that engagement is the best way forward, and we have met the Minister's officials on two occasions since 4 February.

Mr O'Brien: There are separate channels for meetings.

Mr Lavery: For the record, we have requested meetings twice since January with the Minister, and she met us on those two occasions. There is no difficulty in getting meetings with the Minister. She has been very quick to respond. We have had two meetings with the Minister in the room, and then, as Pearse said, we meet the officials quite regularly, including the head of the enabling access to justice programme. Deirdre, I have no criticism of engagement since December.

Miss Hargey: It is important to understand that, because, obviously, there is a disparity in approaches and views across the profession. It is good to get that clarity from you. Thank you.

My next question follows on from that. The Minister wrote to the Committee on 3 February about the interim payment, where the expectation remains that fee changes will be implemented in May. Are you satisfied, or do you know at this point, that the budget will be available in May as part of the Budget process, or is that dependent on further funding being secured? Has there been any indication from departmental officials about the next staging post?

Mr Lavery: For funding the 16%, we were given to understand that discussions had been progressing with the Department of Finance and that funding would be available. I did ask the Minister at our second meeting whether the reshuffle of Sinn Féin Ministers would have any bearing on that, because we now have a new Finance Minister. It was not anticipated that that would lead to any change, but that has yet to work its way through. We have not been given any expectation that funding would prevent the 16% from being introduced. We have not received anything to cause us concern about funding being made available.

Miss Hargey: You said that part of the difficultly over the years that has led to this point was the failure to have inbuilt reviews looking at rates and fees. Going forward, learning lessons as part of the wider access to justice programme and trying to rectify some of those issues, what should a review process look like? How often would you like to see that review and in what format?

Mr Lavery: Statutorily, there was meant to be a review every three years. When that system broke down, we got into difficulties. The Department has said that it would like to get away from that three-year cycle so that fees would be kept under ongoing review. That would be much better, because you would not have to wait every three years for a review process and have a standstill until the next review came along.

We are supportive of what Tom Burgess recommended for criminal legal aid, which was an urgent independent review process conducted by a working group with an independent chair. We were concerned that the Minister seemed to be moving away from that, but we are now reassured that she is looking seriously at that as the process that will follow the May increase.

Miss Hargey: That would be good because that is an area that we could look at in our follow-up.

Mr MacDermott: You asked how often we would like to see a review. We see this as an opportunity to set in place a system that actually works. If you end up with a situation where you look at what is involved in doing any particular type of case under legal aid, you then work out your rate of pay and what fee you get. If there is an ongoing independent review and something changes, you can just tweak the system to make it increase or decrease, whichever works.

Since 2005 or 2009, there has been a raft of legislation. Technology has changed. We now have body-worn footage from the police in every case. We have CCTV and phone records. None of those things was envisaged when the rates were set in 1992, never mind in 2005. A huge amount of new work is involved that is not funded, and it involves a huge amount of work on our part.

The Labour Government were very good. Last time, they changed legislation thousands of times. They can change legislation. With an independent review system, if something changes, we can go to the Department and say, "Here's the building blocks that we are looking at. Here's a new thing that we have to add on," and you can change the fees that way. We want to see a rolling system of review rather than a statutorily set one. It is something that has caused a problem, because the work involved in cases has changed so much in the past 20 years, and it is just not reflected in the fees.

Mr Lavery: That is a strong point. Digital has transformed everything. There is no case that does not involve the recovery of digital information, and there is no quick way of studying a video recording or listening to an audio recording, not yet anyway. Maybe in the future there will be, but time has to be spent doing that now. The system was designed for an analogue-type of investigation, and there is now so much digital material. It is just not priced into the system, so that is a strong point that Pearse made.

Miss Hargey: AI and the way that it will develop over the next 10 years or so will change that further. I think that that is a useful point for the Committee to look at in that ongoing review through the programme overall.

You touched on legal action around payment times. Can you give me a sense of whether that situation has improved? What does the ongoing engagement on payment times look like? Can you give an update from your perspective, please?

Mr Lavery: I will start and then let others come in. When we met the Minister recently, she reassured us that she had got a significant additional funding package for legal aid for the year ahead and that she expected that that would reduce payment times significantly. Peter, do you want to say anything in addition to that?

Mr O'Brien: It is fair to say that, over the past number of months, the payments have been coming in on time rather than extending out. The figures on it are certainly better than they were.

Mr Lavery: You might be cynical and say that the fact that we brought a legal challenge —

Mr O'Brien: Assisted that.

Mr Lavery: — and the fact that the payments system improved are not entirely unconnected. However, there is no doubt that the Minister was very strong in the message that she had got the highest level of funding — I think that it was £120 million for next year — and that we would see the benefit of reducing the delay in payments. The whole system was designed to be simple to administer for the Legal Services Agency and to give our members prompt payment so that they would get cash flow. Starting to mess about with that by delaying it for three months would ruin our cash flow completely. We are encouraged by what she told us, Deirdre.

Mr MacDermott: I am slightly concerned about praising everybody here. I think that I am going to get drummed out of my association if I do not start slagging somebody off soon. The LSA has done its best in recent times, and the figures have improved. There is still a £12 million or £13 million backlog, which is crazy when you think about it. Nobody on this Committee, I assume, works on the basis that they might or might not be paid in three or four months' time, but who knows? Nobody works in that type of system. Your plumber certainly does not, your car engineer does not do it and nobody else does it, but we do, unfortunately. That needs to be brought up to date, but there has been an improvement in the past number of months. I will give credit where credit is due, and that has improved. We take that as a positive at present.

Miss Hargey: It is important, because it feeds into the sustainability and succession that you talked about. It is a vicious cycle with the level of rates and consistency of payments and making sure that they are on time. As you touched on, cases are more complex. We are seeing that right across the public sector. It is not unique to legal aid, and, compared with other jurisdictions, the increased costs are not unique to legal aid either. We see that in delivery across other sections of our public services.

My last question is on family legal aid and the impact on cases. Can you give me an example of what those impacts look like? It can be very technical when we are talking here, but what does it mean out on the ground for people? Given that we are a lot more rural in the North, I have a concern about the implications of consistency of service, particularly with the high street firms that are struggling with access to justice because of our demography. I want to get a sense of and a feel for the pressures and challenges that exist and how legal aid impacts on those.

Mr O'Brien: The issues can depend on the trust area in which the cases arise, certainly the public law cases, because some trusts have a different approach to the threshold of entry into a situation. Basically, once a decision is made, it is necessary to appoint a guardian for that child. There are issues with the appointment of guardians in that it may well be a considerable number of weeks before a guardian is appointed. The case will still come before the court, which will ask the solicitor at that stage what is likely to happen, and that makes it very difficult to make any sort of decision in the absence of having that additional support and tandem model of working.

As we said, those cases are increasingly complex. There are families where there may be a number of parties. Three or four different fathers may be involved, there may be issues about kinship support and there may be addiction issues. There is an international issue in a large number of the cases. All that makes those cases evermore complex and lengthens the time before any decision can be taken. In England, they tried to set a time limit for the speedier disposition of those cases, but even there, where they seem to have some sort of additional support and have had the problems for longer, those time limits have been very difficult to achieve. We are outside the time limits that they have for the disposal of those cases.

Brian, you practise in that area as well.

Mr Archer: I practise predominantly for the guardian service. At the moment, because of the lack of guardians and the increased demand on public law cases,150 cases could be waiting for the allocation of a guardian. If you have a young child, obviously, you cannot get instructions from that child — they do not have capacity — so you are limited, and that delays the case before the court. In a lot of the situations, you have to report back to the guardian service to advise it that the judge wants the case to be expedited and that it will have to appoint a guardian, which it does on an emergency basis. I have a case coming to a conclusion next month that has been running for four years before the High Court. All sorts of risk assessments have been carried out. The volume of paperwork is phenomenal. There is also a related criminal law case. There are about 30 lever arch files of material covering those four years. The maximum interim payment that I could receive from legal aid under the current system is £1,500 for those four years. Hundreds of person hours have gone into that work over that period of time.

Mr O'Brien: The other side of that, of course, is the uncertainty for the child. That is four years without a decision having been made about what will happen to that child.

Mr Lavery: The Department of Justice ran a pilot on speeding up that type of case. The consistent message from the children was that they wanted certainty; they just wanted to know what their life would look like. The pilot showed that you could speed up those cases, but it is entirely dependent on the resources being there, and, as Brian said, they are not. We need to speed up our justice system and the delivery of justice. We cannot let complexity impede justice. We have to be proportionate in our approach.

The Chairperson (Ms Bunting): Will you give me some understanding of payment? Brian, you talked about a case that has been running for four years involving 30 lever arch files and hours of work. You mentioned interim payments.

Mr Archer: There is an interim payment scheme. It is a one-off payment.

The Chairperson (Ms Bunting): How frequently are you paid, or does the bulk of it come at the end? What happens?

Mr Archer: No. During the first year of the case, I applied for an interim payment. It was just after COVID. It was for a maximum of £1,500. That was it.

The Chairperson (Ms Bunting): Is that all that you have had?

Mr O'Brien: That is for cases that are only at a certain level in the High Court. It does not apply to cases that are lower down the system.

Mr Archer: In the County Court —.

The Chairperson (Ms Bunting): Essentially, you have worked for four years, and nothing will come until the end.

Mr Archer: No, it has to be assessed by the taxing master on the rates that are —.

Mr Lavery: We have to acknowledge that, when we met the Minister recently, she emphasised that she is looking at interim payments in criminal cases as well because of the same phenomenon. You could wait for years for the case to complete, and you cannot get paid until it completes.

The Chairperson (Ms Bunting): Your firm could have shut.

Mr Lavery: Exactly.

Mr O'Brien: We have mentioned some of the meetings that we have had since that with the Minister on 4 February. One of those was with the head of the Legal Services Agency. There has been a discussion about interim payments, what they might look like and whether they can be automated, so that, after a certain length of time, some sort of payment would automatically be made. It would be a minimum or base fee, but at least it would be something in the system. Whether that could happen if something went on for a very long period on a number of occasions is another matter. Those are discussions that have been prompted by Burgess. If people were prepared to look across civil and family and criminal, that would certainly be to the advantage of practitioners.

Mr Lavery: There is another aspect that is slightly unfair, which is that the solicitor funds the whole case. If there is an expert witness, they are not going to work without being paid, so the solicitor will have to pay.

Mr Archer: On the civil side, in the High Court at least, you can apply for interim payments for disbursements. You can get that in criminal cases in the Crown Court. You cannot get it in the Magistrates' Court, because there is no statutory provision for it.

Mr O'Brien: That, again, would be of assistance. If you have a case in which, even in the Magistrates' Court, an important medical report, a psychiatric report or something of that nature is required, the solicitor will have to pay for it. In the past, doctors sent it to you and would have waited for payment. They are no longer prepared to do that.

In those cases, as the solicitor, you have to make that payment, but there is no statutory provision in the Magistrates' Court to allow it to pay you back through an interim payment. Again, we are pressing for that and hope that it will be included.

The Chairperson (Ms Bunting): I will ask this briefly while we are on the topic and before I bring in Justin, who has been extremely patient. How do the fees for expert witnesses compare with your fees?

Mr Archer: I wish I were an expert. [Laughter.]

Mr MacDermott: Basically, the irony is that the Legal Services Agency rarely questions the hourly rate that expert medical, forensic or accountant witnesses put in, yet somehow we are lesser experts in our field. The fees that are paid for experts are huge compared with those that we get.

Mr Lavery: The experts are allowed to set their own rates.

Mr Archer: They are paid an hourly rate. There is a difficulty with getting forensic consultant psychiatrists in this jurisdiction. I had to go to Dublin to get one, and his hourly rate was €225, which is about £180. That will be paid to him by legal aid. He will say, "I have 20 hours in which to do this case, which means writing up my preparations, consulting with the client for maybe two to three hours and then writing up the report". His report could cost up to £2,500 or £3,000, which will be paid —.

The Chairperson (Ms Bunting): For which you would receive?

Mr Archer: Sorry?

The Chairperson (Ms Bunting): For which you would receive what? In a similar type of case, what would you receive?

Mr Archer: In a similar type of case, in legal aid and on a not guilty plea, I might receive a maximum of £2,100. That would be for category B, which would be grievous bodily harm or something like that.

The Chairperson (Ms Bunting): Ciara, did you want in on that point?

Ms Ferguson: On that point, do you need that cash flow for your supply chain of experts? I assume that they do not wait around the way that you have to.

Mr MacDermott: They will not give an interim.

Mr Archer: I can apply for an interim payment.

Mr MacDermott: The experts will not give you the report unless you pay them. They are smarter than us. They say, "We're not going to do that. We will not do a report unless you pay us in advance". They will see the client and do what they have to do, and then they will say, "Pay me the money, or else I will not give you the report".

Ms Ferguson: It would be useful to get that information as well. It is not about just you and solicitors; this is about —.

The Chairperson (Ms Bunting): The risks are all yours, essentially.

Mr MacDermott: We fund everything.

Ms Ferguson: It is a supply chain. There is a crisis, and it will only get worse. I am particularly concerned about your supply chain of experts, which is required in order to speed up justice. That is particularly the case when it comes to families and even more so in the case of children because of the negative impact and the long-term effect that it has.

Mr MacDermott: If we have a legal aided case on the civil side, we fund the court fees. We pay the fees to bring them to court. We do not get that back either. We fund that. If there is a High Court action or counteraction, we fund the fee that gets the case to court, and we do not get it back until the case is over. We front-load everything in the justice system. It does not make any sense to us that, when there is legal aid, one Department pays another in the courts service. Why should we not be able to say, "We have legal aid, so take that from them directly"? It does not make any sense. We fund it and are out money in advance.

Mr Archer: We then have to apply to get it back. We might wait for six to eight weeks for that money to be returned, even though we paid it.

The Chairperson (Ms Bunting): Justin, thank you for your inordinate forbearance. Off you go.

Mr McNulty: Thanks, folks. You mentioned Judge Burgess's recommendations. Which recommendations are the Department or the Minister refusing to implement?

Mr Lavery: It is more that the Minister did not commit to implementing any of them at the beginning.

Mr O'Brien: The delivery plan sets out the Department's view, and it has accepted some of the recommendations. Strangely, the delivery plan does not number the recommendations, but I think that there are 36. If you go through the delivery plan, you will see that there is a column on the extreme right that indicates the Department's attitude to the recommendations. It accepts some of them in full and some of them partially, and it is not going to go ahead at all with some of them.

A key issue has been what happens with fees after the interim increase. The judge indicated that a working group should be set up to gather data and settle fees. The Department's initial reaction to that was to say that it would set up a working group only to gather data and would not move forward on the second phase or on a further review of fees. There seems to have been some movement on that in the last period. Hopefully, Judge Burgess will chair that group.

Mr Archer: The Minister also said that refresher fees in the Crown Court would be looked at. The fee that is paid to the solicitor is based on the classification of the charge on the first day of trial. On the second day, you could be there from 9.15 am or 9.30 am to maybe 4.00 pm or 5.00 pm, and the fee is £200. That really does not pay the costs of running your firm for the day.

Mr Lavery: The problem, Justin, was that Burgess reported at the end of August, and there was a long silence. The profession thought that Burgess recommending an immediate interim increase would be acted upon urgently. Burgess also recommended that, once that interim increase was introduced, there would be an independently chaired comprehensive working group that would look at all fees. There was a process that seemed to suggest that urgency was required, and then nothing happened. The Burgess report was not published until it was legally obliged to be. There was a big silence, and that created a lot of suspicion.

It was only on 2 December that the Minister stood up and announced the enabling access to justice programme. Even at that point, although she was very clear that there would be a 16% increase in fees across the board, there was no clarity about the step after that, which Burgess recommended should be an urgent independently chaired review.

In fairness, the Minister has now, a couple of months later, been much clearer about the fact that she envisages an independently chaired working group, but there was no indication of that between the beginning of September and about a week ago. That created a lot of concern, but if there is an announcement about an independently chaired working group, as we believe that there will be, that will go a long way to reassure the profession that there is something beyond the 16% and that it will not just be a stalling exercise of some description.

Mr Archer: We are also concerned about the length of time that the whole reform process is taking. Two years ago, David and I were here, and we were saying that there was a crisis that needed to be looked at. We have been told by the Minister that the current programme of reform will take the rest of this mandate, which is another 18 months to two years, and probably beyond.

Mr Lavery: We said that we needed an immediate injection of funding to keep the system running while a reform programme is progressed. We are closer to that now than we were when the Minister made the statement in December. We are arriving at a point where we would regard that as a reasonable response, given the funding and the Minister's other challenges. We are more reassured by what we heard at our most recent meeting with the Minister. If something such as an independently chaired working group were in place, broadly speaking, we would be content to proceed on that basis.

Mr McNulty: You mentioned urgency, and it is clear that neither the Minister nor the Department has demonstrated that. I am concerned about the path that we are going down, whereby practitioners are withdrawing their services. I understand why. I also empathise with constituents whom I represent who are being affected and will be impacted on by the ongoing crisis in the justice system.

We understand what the demands are, but we know that they will not necessarily be met overnight. What real action could the Department and the Minister take to reassure practitioners and, hopefully, mitigate the worst impacts of the industrial action on those vulnerable people who rely on the services?

Mr Lavery: One answer is to have the 16% increase. We may say that the 16% is not sufficient, but, at least if it were implemented to be available to cases that are under way, that would be a step forward. However, as I said in my opening remarks, when the consultation was published, it would not have been available in any case until the case got legal aid in May and then it would be a year or more before the benefit would be seen. The more that the Minister can do to apply the 16% to cases that are already in the system, the more significant the improvement.

Mr MacDermott: The difficulty is that there has been a lack of confidence in the DOJ and the Minister. The gap between August and December was not helpful. However, we are where we are, and we are in the situation where we believe that we can engage with the Minister and the Department and move forward. As David says, the 16% needs to be backdated. It needs to come into legislation as quickly as possible, because there is a slight concern that it may not reach May, which is when provision for it is supposed to be tabled in the Assembly.

There are some very simple things that the Minister could do on the Burgess review. We talked about refresher fees. Burgess recommended a 25% increase, not a 16% increase, in refresher fees. The Minister could announce that that is going to happen. That would be a confidence-building measure. It would take little difficulty to do that and would not cost a lot of money, as far as we can see.

The independent panel needs to be set up urgently. More important than being set up, it needs to have a very strict timetable that allows it to get results. There should then be a commitment from the Department to say that the independent panel's recommendations, whatever they are, will be acted on.

The concern is — you are quite right in this, Justin — that we are kicking the can down the road. We have a review, it goes on for a number of months, the panel comes out and makes recommendations, and it takes another year for anything to happen. Therefore, we need a very strict timetable for that independent review to have recommendatory powers that the Minister will act on, as opposed to her just saying, "I will take that into consideration".

Those are the confidence-building measures that would allow people to go forward with the process. If they do not happen, the difficulty is that, once you lose that confidence, it is very hard to get it back.

Mr McNulty: Is there any evidence of practitioners refusing legal aid work because of the crisis in the justice system?

Mr MacDermott: That is probably right. You will find that, if the system does not change, firms will just slowly disappear. There will be firms with people my age, and, when they retire, nobody will replace them. The firm that used to do it is not there any more. I will not name firms, but a number of very big firms in Belfast just disappeared. People stopped working, and they were not replaced.

I do not know whether you can identify anyone at this point who says, "I am going to stop doing legal aid work". It is very difficult to suddenly get yourself a new client base and a new set of work. It may not happen immediately, but the drip, drip disappearance of firms will lead to a situation whereby, as Deirdre talked about, the network of local solicitors will disappear because people will just stop doing legal aid or firms will cease to exist. Nobody says to us, "We are stopping. We are not doing legal aid work any more", but it is happening on the ground and is a concern.

Mr Archer: Practitioners may be more selective than they were about the legal aid work that they do. In recent years, a lot of firms have stopped doing immigration work because the fees are so poor. I do not do any private family law cases now in the family proceedings court through legal aid because of the fees. I just cannot afford to do the work.

Mr Lavery: That is what I meant by silent quitting. People are just not doing the work. Brian has discontinued private family law. It is just not economic. We are, though, hearing reports from people who need a solicitor and cannot get one to do certain categories of work. That is happening. There is no big announcement. They are just voting with their feet. That change will be even more rapid, but we need to arrest it.

That is why the Minister is trying to have an immediate uplift in fees. However, because we did not think that that would be nearly enough, we wanted that urgent comprehensive review independently chaired. Until about two weeks ago, all we were hearing was that there was going to be a data group to collect data. It would be chaired by an economist. We had no clarity about what would follow that, but the Minister is now certainly much more in our space, and she has in mind, I understand, an independent working group, chaired independently, hopefully by someone such as Judge Burgess, in whom we have confidence. That group will direct the data group exercise so that it does not run on for too long. If we get that, we will certainly be prepared to engage. That should see us through until the summer probably, and then we will have to see what we get out of it.

Mr McNulty: The immigration practitioners' group recently voted to commence industrial action as well. That is another issue. Further to what Doug said, you mentioned transparency and openness. Are there any known abusers of legal aid and the legal aid system who are practitioners and who have turned legal aid into a mini-industry and a money-printing machine that does not necessarily have a huge focus on justice delivery?

How does not publishing the list help to dispose of any concerns?

Mr MacDermott: I will give you a simple answer to your first question: no.

Mr Archer: If the state has a suspicion that someone is committing fraud, that person should be investigated by the police, charged, the case brought to the Public Prosecution Service (PPS) and taken to court. The Law Society will fully support that process. I do not think you can correlate publishing the list with potential fraud. It is very unfair to do that.

Mr McNulty: You are making that correlation. My question is this: for the sake of openness and transparency, would it not be —?

Mr Archer: I do not have an issue with the list. In fact, it got to the stage where members were quite proud to be on the list, because it showed how well their firms were doing, and it was discussed amongst practitioners.

Mr Lavery: The answer, Justin, is that there was a major initiative by the Legal Services Agency to measure and reduce fraud and error, and it has consistently reported that there is no supplier fraud. The problem is technical errors in the system. There is a published, publicly available exercise to make sure that there is no abuse of the system, and that should be the reassurance that you require as an elected representative.

Mr Archer: The vast majority of cases in the Magistrates' Court and the Crown Court are paid with fixed fees. There is no room for fraud in those cases. You represent your client, and you are paid the fee, which is a simple exercise by the Legal Services Agency.

Mr McNulty: Thanks, folks.

The Chairperson (Ms Bunting): Folks, I am acutely conscious of the time. Danny, I apologise for doing this to you at your first meeting.

Mr Baker: It is fine, because I have only one question.

The Chairperson (Ms Bunting): My aim is for everybody to be as succinct as possible, please. Thank you, Danny.

Mr Baker: Thank you for the informative briefing. Did the Minister gave you any timelines for the 16%, the backdating and the independent working group? Do we have actual timelines?

Mr Lavery: We expect clarity around that in the next week. The 16% will be legislated for in May. We have asked for it to be applied to cases that are in the system. The Minister is looking at that, and we will get clarity on the matter reasonably soon. The missing bit is the independent working group. I understand that there were discussions with a prospective chair of the group, and its terms of reference were discussed earlier this week. There may be an announcement forthcoming this week or next. If it comes out in the way that it is shaping up, with an independent chair, the independent working group should start almost immediately. It can start now; it does not have to wait for the 16%. The independent working group can get under way, because it needs to do the data collection.

We understand that the independent working group's first task is to collect the data within a fixed time limit, and the intention is to publish an interim report from the working group within a limited period, possibly in June. If that is achieved, we will regard that as a fair response to our concerns.

Mr Baker: Thank you.

The Chairperson (Ms Bunting): Thank you, David. The great thing about going last is that a lot of your questions have already been answered. However, there are a couple of things that I want to tease out. It seems to me that there are two significant issues: the immediate circumstance; and the review programme and the pace at which it moves forward. The papers indicate that the reference group is up and functioning, and we know that the working group with its independent chair is under consideration. The Bar has also proposed that a legal aid board be established, which may emerge from any working group. I am sure that some of you are involved in the reference group's data collection, and that will be exceptional and helpful work. Is it functioning well? Is it moving as quickly as it needs to for the issues to move forward quickly?

Mr Lavery: It is not in existence yet.

The Chairperson (Ms Bunting): It has not started yet.

Mr O'Brien: It has not started yet, no.

The Chairperson (Ms Bunting): There was an indication in December that it would be taken forward, yet nothing has moved, and we are in mid-February.

Mr O'Brien: To be fair, that is because we have continued to say, "This is not what Burgess recommended". There are two parts to the working group that Burgess recommended. It is not just a data collection group. It is also about looking at fees, and those two things go together.

We were advised that there would be terms of reference for the data collection reference group, but, in fact, the conversation has moved on, and we now appear to be making progress on the group looking at the future settlement of fees. We envisage that those two things will now come together.

Mr Lavery: There was an awful lot of confusion. There were so many groups at one stage that I did not know which group they were talking about. We want one group, which is chaired independently, to look at fees and report urgently. It will oversee the work of a data collection group, but that data collection process has not yet started. We hope that it will start as soon as the working group is in place, because the prospective chair will need that information. As to the other thing, the legal aid advisory board —.

The Chairperson (Ms Bunting): Is that not work that could be done in the interim period? That data could be collected right now whilst an independent chair is being appointed.

Mr MacDermott: As solicitors, obviously, we are doing our own data collection. A lot of the data, however, comes from the Department of Justice, and it should be working on that. There is nothing particularly controversial or hidden about it.

The Chairperson (Ms Bunting): We may follow up on that and see what the time frames are.

Mr Lavery: They will not start with a blank sheet. We have spent so much time putting profitability data etc into this. There is plenty of data to gather, but I think that I am correct in saying that the data collection group has not yet started.

Mr O'Brien: Definitely not.

The Chairperson (Ms Bunting): I think that we will pursue that, because that is work that could be commenced.

Mr O'Brien: Yes. Chair, you mentioned the legal aid advisory board, and Justin raised earlier the recommendations that the Department had not followed up on from the Burgess report, and that is one that it was felt not appropriate to take forward at this stage. We are also in favour of a legal aid advisory board, but, as you said, that will come out of all of this, and it is really about looking at the direction of legal aid in civil matters, family matters and criminal matters in the longer term and at what the policy direction and shape of all of that should be. We are also in favour of that. It is a Burgess recommendation that we support.

Mr Lavery: As Brian reminded me, there was such a thing 20 years ago.

Mr Archer: I was a member of the Lord Chancellor's legal aid advisory committee. It oversaw the performance of legal aid and was totally independent.

Mr Lavery: It was very good. It could look at things such as those that we discussed earlier, including the fact that, because the rate has not changed, so many people are no longer eligible financially.

The Chairperson (Ms Bunting): It changed the thresholds.

Mr Lavery: It looked at that objectively and was very useful. It was chaired by David Smyth.

Mr Archer: It folded in 2005 when the Legal Services Commission took over.

Mr Lavery: The only thing wrong with it, from when I was in the Courts Service, was that the person who was the secretary to it was also one of the legal aid officials. So, occasionally, he wrote to himself, saying, "This system is a disgrace", and then he would reply to himself, saying, "I take grave offence at your comment". [Laughter.]

The Chairperson (Ms Bunting): That seems efficient. [Laughter.]

Mr Lavery: I am sure that we could fix that.

The Chairperson (Ms Bunting): I have just a couple of other points. You have been very generous with your time, and we have other business to work through. In your opening remarks, David, you referred to the 16% payment and said that it was "too little, too late". You said that, if that were not applied to ongoing cases, it would be "too little, too late". What did you mean by that? If this is not rectified and addressed within a year, how many firms are likely to go to the wall in that year?

Mr Archer: Firms live off their overdraft. I find that, every month, I am coming up to the limit of my overdraft and then hoping for private fees or legal aid fees to come in. Civil fees — private fees — are subsidising the delays with legal aid. We are mixed practices: we do legal aid work and private work. It also impacts on legal aid. One of the things that I was hoping for this year was the increase in the County Court scale. The County Court rules committee recommended 23%; there has not been an increase since 2018. That went to the Minister before Christmas, and I am told that it was delayed because there was to be an impact assessment on that and legal aid. In reality, the County Court's cost for legal aid is quite limited, because the vast majority of cases are successful. In my 30 years in practice, I have not put even 10 civil reports into legal aid for the payment of cases, because they tended to settle or we were successful in getting an award in court.

Mr Lavery: You need legal aid to bring the case, but it is not a cost to the legal aid system, because the insurance company will pay it at the end of the day. The County Court system is a brilliant system. It has scaled costs and has operated fairly for years. Quite why the Minister sent the recommendation back to the County Court rules committee, saying that it would cause inflation, I do not know. I think that that is a misunderstanding. The County Court rules committee is, however, looking at that.

I said "too little, too late" because, if the 16% were applied prospectively, nobody here would see any benefit of that for at least a year.

The Chairperson (Ms Bunting): I understand.

Mr Lavery: There is now a willingness to apply it to current cases. It is just a question of how far back it will go.

The Chairperson (Ms Bunting): That is what I am trying to get to, David. It will take time for all that to work through: for the officials to do all their work and for the regulations to come forward, be passed and implemented. Only then will you to start to look at your payment. Have you any data on how many firms are likely not to survive that period?

Mr Lavery: I do not. I would love to give you a crisp answer. Very few firms do exclusively legal aid work. Most small firms do a mix. Like Brian, they are privately funded and publicly funded. They just stopped doing the publicly funded work. They will still be there. They will be doing other work but not the legal aid work. We are seeing that already. We keep talking about Enniskillen, because it is sort of neat.

The Chairperson (Ms Bunting): Yes, so that takes us straight back to the access to justice issue.

Mr Lavery: There are firms that have stopped doing legal aid in that small area, so it is a good case study. If we got the 16% and an urgent exercise that would produce recommendations by, say, June, there would be at least the prospect of retaining the supplier base. That is why I brought the Hook Tangaza report along, and there are copies for you.

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

Mr Lavery: If you have time to read through that, it basically tells you what the life of a criminal practitioner is and why you cannot make any money. Nobody knows that better than you, Chair. It is a reality, and you need to look at that reality. Neither a 16% increase nor any further increase will transform that, but it will keep the businesses running until more fundamental reform is possible. We are trying to do our part in that. I explained about apprenticeships and other ways to try to attract people into those firms, because they are the community legal service that we all take for granted.

The Chairperson (Ms Bunting): Absolutely. I have a couple of points on the bigger scale before I come back to the present day. You outlined some of this, but I just want to be crystal clear. Is there any aspect other than what you have brought to our attention that is critical to you but that the Department has not accepted that it will move on?

Mr MacDermott: One thing that strikes me is financial eligibility. There used to be a "green form scheme". You gave advice and assistance to people when they came in with housing problems or even criminal matters, and you could claim for the time spent on that. There is now a £1,000 capital threshold for that, which means that, if you have more than £1,000 in capital, you cannot get that advice and assistance. Therefore, we cannot give that advice, or, which is more likely, we do it pro bono. Our view is that anyone on state benefits has been assessed by the state as requiring welfare help. Anyone on state benefits should be entitled to get legal advice benefits as well, but that capital threshold, which has not changed in over 30 years, is causing a major problem. It means that that area of advice is just not available at present.

Mr O'Brien: A classic example of that would be the pensioner who receives benefit and is saving for his or her funeral. If they have saved more than £1,000, they are no longer eligible for green form legal aid advice.

Mr Lavery: Basically, the system got damaged badly when the Department broke the link between welfare benefits and qualifying for legal aid. That was a straightforward system. When the Department broke that linkage, you really had problems. For the green form, the Legal Services Agency was asking for bank details. Those people may not have a bank account at all. The way in which the Department has gone about it is not realistic.

The Chairperson (Ms Bunting): It is quite an invasive process for assessment.

Mr Lavery: It is. The Department killed green form. Green form was a great system. People could get access to help, and the solicitor got paid for the advice that they provided. It was beneficial to the client, who got legal help, and it gave a little bit of cash flow to the firm. Basically, it was just stopped.

The Chairperson (Ms Bunting): Was that stopped in just Northern Ireland?

Mr Lavery: Yes.

The Chairperson (Ms Bunting): It is therefore just a Northern Ireland issue.

Mr Lavery: It was stopped just here.

The Chairperson (Ms Bunting): That may be something that the Committee can pursue.

Mr Archer: I remember doing two hours of green form work. It was £88 then, and it is still the same: £88 or £89.

Mr MacDermott: You cannot get it any more. [Laughter.]

Mr Archer: If you have an issue that you need to speak to a prisoner about, but you are not claiming for going to see the prisoner under an existing criminal legal aid certificate because it is about an entirely separate matter, you have to get three months of bank statements for that person, who may have been in custody for 10 years. It is therefore almost impossible to claim for green form assistance for somebody in that situation.

The Chairperson (Ms Bunting): If we think about bingo accounts and bookmaker accounts, it is very —.

Mr Archer: That is exactly right.

Mr O'Brien: The administrative hurdles are such that so many practitioners just say, "I just can't do this. It's not worth it". We do not get paid for gathering evidence.

Mr MacDermott: The simple answer is to align legal aid eligibility with unemployment benefit.

Mr Archer: With universal credit.

The Chairperson (Ms Bunting): That is helpful to know.

Mr Lavery: If the working group could look at that or at something like having a legal advisory board, which Peter has talked about, that would make a big difference to citizens' getting legal help.

Mr Archer: For access to justice.

Mr O'Brien: That is a key issue in criminal legal aid. If you get advice in a police station, that is covered, because it is non-means and non-merits tested, but if you then get a summons, and you want to see your solicitor for some advice on what you should do about that summons, that is not covered by the green form scheme if you have more than £1,000 in savings.

The Chairperson (Ms Bunting): You could be in big trouble. The PPS has a lot of resources with which to come after you, but you may be too strapped for cash to be able to defend yourself.

Mr Archer: Tom Burgess recommended early engagement.

The Chairperson (Ms Bunting): That is interesting about the green form. It is probably new to a lot of us.

I will bring us to the present day. I will not ask you for your view on the Bar strike — I do not want to hear it — because I do not want to put you in a position. I just want to understand the impact of the strike on your clients and on your work.

Mr Archer: I have clients in custody whose trial cannot proceed because there is no trial. I have a client who is on bail. He pleaded guilty in September, and he is waiting to be sentenced, but he cannot be sentenced because there is a co-accused who wants a trial, so the case is being put back. I do not know when the trial will take place. Once we hit June, we will be looking at the summer recess. Although there will be a few sitting days, there will not be any trials in July or August, so it could be towards the end of the year.

Mr MacDermott: It has a major impact on our clients, particularly those in custody. If they are getting close to time served, for instance, you want their case to be dealt with. We have sympathy for the Bar. We understand that it is in the same situation as we are in: it is in crisis. For the Bar, the Crown Court is as badly paid as it is for us. That needs to be addressed.

We are in a different situation, in that, as I said, we cannot afford to strike. That is the first thing. Secondly, we provide access to justice for clients. We are the interface for them. We are the people who meet them daily when they walk into our office or when we see them in the prison setting. We are not giving up having that contact with, and providing that assistance to, people at this point. I am not saying that we will never do so, because if things become drastic, and if the process does not work out as we hope that it will, with everybody working together, we may have to take action. At present, however, we are holding the line with our clients, protecting them as best we can, recognising their interests and needs and trying to move things forward.

We hope that there is engagement between the Bar and the Department and the Minister to resolve the matter to everybody's satisfaction as far as is possible. We meet the Bar — we are giving it our advice — and talk to the DOJ about what should be done. The Minister needs to do a couple of things around confidence building for the Bar that would allow it to get moving in the process.

Do not underestimate the impact on our clients, however, because it is dramatic. If the situation continues, we will have to look at our options in order to look after our clients' interests.

Mr Archer: If we as solicitors took the same view as barristers and decided that, after 5.00 pm on Friday, we would not attend the police station or provide telephone advice until Monday morning, there would be no police interviews, because they would not be article 6-compliant under the Human Rights Act. People would not have access to advice about their legal options, and that would have a knock-on effect on the admissibility of evidence in any future trial. If you look at the cases in a police station at any given time, you will find serious sexual offences cases, murder cases and terrorist offences cases. We do not want to go down that road. I do not think that any solicitor would encourage going down that road, but the system is cracking. To wait another two or three years before it is reformed is to wait too long.

The Chairperson (Ms Bunting): That is understood. Finally, I am going to ask you this question because I asked it of the Bar: I find brief fees to be quite elusive and difficult to interpret and understand. They seem opaque to me, and, again, I am conscious of the need for transparency with public money. They are included in the fees that you submit. They are subject to the taxing master. What is your view on brief fees and how they are calculated?

Mr MacDermott: A stony silence on that one.

Mr Archer: I have never submitted a brief fee. I have no input to give on how it is calculated, because I simply get a fee note from counsel, who will outline the work that they have done in their narrative report.

The Chairperson (Ms Bunting): Are brief fees clear to you? Do you understand how they are calculated?

Mr Archer: No.

The Chairperson (Ms Bunting): As other professionals in the sector, do you understand how barristers come to a figure?

Mr Archer: No.

Mr Lavery: It is an assertion of the value of the work. That is really what it is. I was in this room at the beginning of the mandate when you asked the chair of the Bar Council at the time to write a note explaining the brief fee. When I went outside, I said, "Good luck with that".

The Chairperson (Ms Bunting): It was sent to us last week.

Mr Archer: Oh, right.

Mr MacDermott: Chair, your question touched on taxation, which is slightly outwith the remit of the Burgess review and enabling access to justice. I have great concerns about getting rid of taxation in its entirety. You have highlighted what the opaque element of it is — the brief fee — but solicitors have always operated on the basis of charging an hourly rate. We operate on the basis of justifying every second worked, every letter written and every phone call made. Everything goes to the taxing master, who then looks at what we have done, decides whether it is reasonable and necessary and then pays us based on that decision. We do not want to lose that aspect of taxation. I am aware that you raised the issue of brief fees with the Bar. It is for the Bar to answer on brief fees. We cannot answer for it. Everything that we do is justified line by line and scrutinised line by line before we get paid for it. We therefore have no issue with taxation. We want to retain taxation for that purpose, but we understand the difficulties that the Committee has with it.

Mr Archer: Taxation works in every common law jurisdiction. The Republic of Ireland, Scotland, England and Wales have it. We do not set our own hourly rate, and taxation is a matter for the taxing master. He is going through the process of reviewing the rate at present. We expect a decision on that perhaps by Easter. All that we can do, as Pearse said, is submit our report. All the paperwork on our cases can be inspected by the taxing master, and if there is an issue, we can go in and explain why there was a higher cost in a certain area. As far as brief fees are concerned, however, the Bar can speak for itself.

The Chairperson (Ms Bunting): I get that. I just wanted to know what your view was and whether you have any greater understanding of them than we have.

Mr Archer: I have never had any discussion with counsel about brief fees.

The Chairperson (Ms Bunting): That is fair enough. You have been very generous with your time. I have no doubt that we will hear further from you as we continue to take evidence on the Bill.

I make these points to you. We are acutely aware that this is public money, with which there must be transparency and value for money, so that is our position. We are, however, also concerned about access to justice for our citizens in Northern Ireland. That having been said, we do expect people in the profession to receive fair pay for the work that they do and the hours that they put in and for them to receive payment in a timely manner. The Committee's view is pretty much unanimous on that front.

Your evidence today has been very helpful. We very much appreciate your update on what is going on in the profession and your opinions on the review and what may follow from it. We will keep in touch with you. We are also hopeful of hearing from the Bar about some of the issues. I am very grateful to you for your time today, gentlemen. Thank you very much indeed.

Mr Lavery: We are most obliged to the Committee for its interest in the subject and for the opportunity to explain to you some of the challenges that the solicitor profession faces. Thank you very much.