Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): We have with us Donal Lunny KC, chair of the Bar of Northern Ireland, whom we are all familiar with; Denise Kiley KC, vice chair of the Bar, who has been with us before; and David Mulholland, chief executive of the Bar, who has also been with us before. They will provide us with oral evidence on the access to justice programme.

Folks, you are welcome. Thank you very much for taking the time to be here. I am sorry that we are running somewhat behind, but you will appreciate that the issues that relate to the Bill are our first priority in these circumstances. We have received your written paper. I will hand over to you for about 10 minutes, if there is anything else that you want to bring to our attention, and then we will head into members' questions. For the members who were not here at the start of the meeting, if you want to come in on the back of a particular issue that I already have a list for, please indicate. If there are other issues that you want to raise, we will work our way through those too. Thank you. Over to you, Donal.

Mr Donal Lunny (Bar of Northern Ireland): Thank you, Chair. I thank the Committee for the opportunity to provide oral evidence today on the enabling access to justice reform programme. We recognise that the reform programme is wide-ranging. It covers many and varied areas of proposed measures and interventions across the provision of legal aid in family, civil and criminal law. With that in mind, we hope that you will forgive us for having bulked up your Committee pack with a briefing paper that is a bit longer than is normal.

The Chairperson (Ms Bunting): No, it is helpful, so thank you.

Mr Lunny: I am grateful for that. Denise and I will attempt to be as succinct as we can in our oral evidence. I will attempt to cover what, we think, are the most important points, as we see them, on the basis of the information that we have at the minute. By way of a follow-up, we are happy to provide our detailed consultation responses on the delivery plan and the remuneration proposals, if that is helpful. They are quite lengthy, but there is no problem with that.

As you know, the enabling access to justice reform programme was launched by the Justice Minister on 2 December last year. It was described by the Minister as "an ambitious one", and that might, we think, be a bit of an understatement. The announcement of the reform programme came against the backdrop of what we see as a long-standing and deepening access to justice crisis, historical underinvestment in the legal aid system, long court backlogs and delays, a continuing failure to review fees for legal aid work in line with statutory obligations, excessive and unfair payment delays and dedicated solicitors and barristers being stretched almost to breaking point.

The Bar is firm in its view that the administration of the legal aid system across Northern Ireland has to be reformed. Reform is absolutely necessary when there is an access-to-justice crisis, and we have been advocating reform for many years. We recognise that delivering the necessary reform in such an important area is a challenging task and engages a high degree of complexity, risk and jeopardy. For those reasons, we consider that we have an important and constructive role to play in helping to shape the reforms. Any criticism that we make of what the Department has set out to date is intended to be constructive. It is offered from the perspective of a critical friend with experience and insight gained from our historical and current practical involvement at the coalface, where we see, in real terms every day, what policy looks like when it is converted into operational reality.

Crucially, the initial focus of any reform measures must be on bringing stability to the system. Reform initiatives must be prioritised to ensure that policy interventions are impactful and correctly sequenced. It is essential that reform measures make use of up-to-date evidence and learning from neighbouring jurisdictions.

As I mentioned, the Bar took the important opportunity to participate in the consultation exercises associated with the enabling access to justice delivery plan and remuneration proposals, both of which closed at the end of March. We continue to participate, along with solicitor colleagues, in the working party that is independently chaired by His Honour Judge Burgess and that is focusing on fees for criminal legal aid work. Our consultation responses stress the point that recovery of the system should take place before an ambitious reform programme is foisted upon the system. Ambition in any reform programme is laudable, but the Department must acknowledge that a wide programme of reform is being applied to a very unstable system of legal aid, and a move-fast-and-break-things approach should not be taken, because the justice system is far too important and precious for that.

We can now provide a brief overview of the information that we submitted to the Department through our consultation responses, and those are the responses on the delivery plan and the remuneration proposals. I will summarise the former, and Denise, as vice chair, will summarise the latter now, if that is OK.

Ms Denise Kiley (Bar of Northern Ireland): The remuneration proposals must, we say, be considered against the factual background of the repeated failure of the Department to conduct the remuneration reviews that are required by statute. The Minister of Justice is, of course, right in her assessment that those failures occurred in the past and that the focus must now shift to placing the system of legal aid on a more sustainable footing. However, the statutory duty to conduct those remuneration reviews remains. It cannot be brushed aside, we say. It should not be viewed as some sort of unnecessary and burdensome obligation. It exists for a reason. It is a tool, we say, that can provide an opportunity to ensure appropriate remuneration rates, and it is regrettable that the Department has repeatedly failed to take that opportunity. The impact of that repeated and continuing failure is pervasive. It has resulted in remuneration levels that are grossly outdated, and it is a crucial factor in the current access to justice crisis that we are facing.

Despite that fact, there has been no clear undertaking by the Department to commit itself to undertake those statutory reviews on fees in the future. Whilst the fundamental review of criminal legal aid conducted in 2024 was, of course, welcome, it is not a replacement for the required statutory review and, in any event, cannot remedy the failure to conduct those reviews in the past.

As the chair of the Bar mentioned, we advocate the recovery of the legal aid system before wide-ranging reform in the right areas is initiated. In practical terms, that involves making the legal aid system more sustainable through recognition of the link between fair remuneration, retention of skilled professionals and effective service delivery for all citizens. Therefore, we say that the proposed 16% uplift is a welcome starting point. We also welcome the fact that the Department has initiated a review of criminal legal aid fees beyond the 16% uplift through a working party that is tasked with looking at fees for criminal legal aid and that it has consulted on a 16% uplift across other areas, specifically family and civil legal aid. However, after decades of failure to review fees, during which time the complexity and volume of work undertaken have expanded enormously, the 16% uplift must be viewed as a floor for fees rather than the ceiling.

The Committee is well familiar with the challenges in attracting and retaining diverse talent in the Bar. If we are to compete, not simply with alternatives to having a legal career but with alternative sources of work, including other publicly funded sources of legal work for these talented barristers, the fees being paid for legal aid work simply have to be more competitive and more appropriate.

In that regard, the operation of the working party is a useful intervention, and we welcome it. As the Committee will be aware, the working party is still examining various areas that are of direct relevance and critical importance to the Bar, and constructive engagement is taking place on those areas, with the aspiration that the working party will be in a position to propose more durable and appropriate fees beyond the interim uplifts that Judge Burgess previously recommended.

There is an abundance of existing data to support more substantial fee increases, including but not limited to verified benchmark government data on payment rates to counsel across a variety of alternative areas of work. It is essential, we say, and should be a mutual objective that the working party make use of that existing abundance of data, with the ability, of course, to supplement it where necessary and that it makes meaningful progress in the shortest time possible on the areas that, as the Committee is well aware, are of acute concern to the Criminal Bar Association.

I will now hand back to the chair to address you further on the wider reform programme.

Mr Lunny: One of our concerns is about the lack of transparency and accountability across the reform programme as a whole. One example of that is that the Department refers to learning from other jurisdictions, but that is referred to as part of the evidence base on which some of the proposals are premised. However, there is no indication of what that learning is, from which jurisdictions it is drawn or how it has informed the proposed reform programme.

A further example of a lack of transparency and accountability involves the use of evidence that is not publicly available to inform the reform programme.

One example is that research commissioned by the Department is said to be in:

The Department holds that report, but it is not publicly available to any of the consultees. I should also say that the evidence base that is relied upon across the reform programme is, we say, much too diffuse. It ranges from reviews conducted 10 years ago to what the Department has called "other detailed stakeholder engagement." It has resulted in a programme that we see as lacking focus, balance and consistent rigour. It attempts to advance a wide-ranging set of proposals that may not in fact address the current or urgent needs of the people who use the legal aid system.

One feature of what we see as a diffuse evidence base is that the Department has relied upon some outdated evidence, and that has resulted in its proposing deliverables that had been considered in earlier reviews and often ruled out. In some instances, these were proposals that had been ruled out on more than one occasion. For example, the Department published its report on its access to justice part 2 review back in 2015 and ruled out a number of policy changes that have re-emerged here in the enabling access to justice review on matters such as contracting for legal aid services, the establishment of a public defender service and narrowing the scope of private law family legal aid. Another example of a previously discredited policy proposal reappearing is conditional fee agreements, which have re-emerged as an issue in enabling access to justice. You may know that conditional fee agreements are more commonly termed "no win, no fee" arrangements. They were ruled out by Sir John Gillen in 2017 in his civil justice review. We can provide you with a fresh copy of that 2017 review, if you would like one. You may also know that the experience of conditional fee agreements, or no win, no fee arrangements, in the neighbouring jurisdictions of England and Wales has not been a happy one.

As a Bar, we question what, if any, new evidence might have prompted the Department to go back and revisit those issues for, in some cases, the third time in a decade. It is not clear to us why they are being revisited. By way of contrast, we know that, on behalf of the hundreds of practitioners who deliver the legal aid service daily, before the launch of this reform programme, we submitted detailed, contemporary evidence, which does not seem to have been referred to or feature in any of the published papers that have accompanied the programme so far.

Through our consultation response on the delivery plan, we have also detailed what we see as a lack of clarity throughout the whole programme. There are inconsistencies and uncertainties in the phraseology and language used. For example, the Department refers to its intention to "consult", but it also refers to its intention to "review" issues. Are those the same? We have urged the Department to use consistent language, or, if those are different concepts, to explain what the differences are. That is to help us to understand the scale and scope of what it intends to do. Again, without being able to understand that, we cannot make a meaningful or full consultation response.

You should also be aware that there is a lack of clarity on some of the deliverables in the programme, which may or may not require additional funding. It is unclear to us whether business cases will be necessary for any of the deliverables or whether the lack of any reference to the budget required to implement the programme indicates that the programme is intended to be self-funding. That, we say, is unclear.

Another area of concern is the feasibility and sequencing of the reform proposals. Over the next three years or less of this programme, the Department appears to intend to introduce 27 sets of proposals, publish at least 20 post-consultation reports and introduce primary and secondary legislation on around 15 different issues. With the greatest of respect to the Department and its officials, who are putting in a lot of work on the reform programme, that appears to be quite a stretch. We envisage that that level of output across three years would be very difficult to achieve, particularly bearing in mind the continued failure of the Department to discharge its statutory obligations, such as failing to conduct legal aid remuneration reviews when the statute has required that. In fact, there has already been some slippage in the Department's delivery plan. It indicated, for example, that a discussion paper on the regulation of legal aid providers would issue by March of this year, but that has not happened. It also sought to issue proposals on the reform of taxation in legal aid remuneration for High Court bail applications by March, but that has not happened yet either. Slippage is already evident. Given the need for realism and predictability about what the plan can deliver and when it can deliver it, that emphasises the point that we should really focus only on areas in which there is a clear and compelling set of current pieces of evidence requiring action, rather than repeated attempts to revisit old ground.

The overall sequencing of the delivery plan could, we say, be likened to a house of cards. If something were to fall in one area, would other areas of reform come down with it? Each element of the delivery plan must be subject to a meaningful and compliant consultation exercise and must be assessed for individual and collective impact. As the Department acknowledges, it has not, at this stage, been possible to comment on the impact of the overall plan, as the detail of each element has yet to be worked out. Therefore, an impact assessment has not yet been conducted on the delivery plan as a whole, which concerns us. That must not be taken as an acceptance that the delivery plan, or the impact of the plan, has been understood and agreed.

Perhaps inevitably, given some of those issues, the delivery plan is already somewhat out of date. We welcome the fact that the plan might be changed and might be dynamic enough to address new factors and heed feedback that we and other stakeholders give. However, the version that was consulted on, for example, does not reflect the welcome development of the working party that the vice chair mentioned, which is meeting at present under its independent chair, Judge Burgess. That underscores, we say, the complex and dynamic nature of the delivery plan and the challenge of assessing its overall impact and being clear on what benefits it might, in due course, deliver. That challenge only increases when you reflect on the fact that the plan does not exist in isolation. It will be impacted by related legislation, such as the Justice Bill, and initiatives undertaken by, for example, the Criminal Justice Board on various topics, such as speeding up justice. Yet we and the Law Society, as the professional bodies, are not represented on the Criminal Justice Board at all. That should be changed. As it stands, the voice of both branches of the legal profession is completely missing on interconnected issues of policy and implementation, which will have a bearing on the access to justice reform initiative.

We have been critical of the approach adopted by the Department to the enabling access to justice reform programme. However, our criticism is well intentioned, and we seek to ensure that the Department adhere to evidence-led policymaking when pursuing what are vital reform initiatives. At present, there is, we say, an opportunity to introduce sustainability and stability into the legal aid system. The Department needs to grasp that opportunity through evidence-based, objective, prioritised and impactful interventions.

The Chairperson (Ms Bunting): Donal, thank you kindly for that. It was helpful.

I noted in your written submission the issue with sources and availability of evidence. I intended to ask the Committee to agree that we write to the Department to ask it to release that evidence and to flag that issue to it.

Mr Lunny: That would be very helpful. It is important.

The Chairperson (Ms Bunting): Another issue of note that you raised is summer consultation, which this Committee has been concerned about. It is my intention to ask the Committee to express concern about that, but we will get to that in due course. I just want to draw to your attention from the outset the fact that, yes, we are mindful of that.

In advance of you coming in, members indicated issues that we want to discuss with you, including an update since the Minister's statement; the work in progress; engagement with the Minister; progress on the working party; the up-to-date position on withdrawal of services; the taxing master; and remuneration. There are also a couple of other bits and pieces.

I will go to Stephen first. Members, I ask you to keep the preamble as limited as you can. Ladies and gentlemen on the panel, I ask you to keep the answers as succinct as possible. Thank you very much.

Mr Dunne: Thank you, folks, for your presentation and your detailed submissions. We had the statement in the Assembly reasonably recently. What level of engagement have you had over the past few months with the Minister and the Department? What is the engagement with the working party? What is the time frame?

Mr Lunny: There has been reasonably frequent engagement at departmental official level with our chief executive. That is outside of the working party, but it is probably fair to say that most of the engagement — there has been a lot of it — has been through the vehicle of the working party. That work is ongoing and is detailed. I do not want to say too much about the detail of it at this point, but it appears that everybody is working collaboratively. A lot of effort is being put in by the Law Society, departmental officials, members of the Criminal Bar and the independent chair, Judge Burgess, to advance a number of issues.

Judge Burgess produced a sort of stocktake of where the working party was at the end of March/start of April. He has been able to recommend a number of steps to be taken. When the legislation on the 16% interim uplift is enacted in May, most of that will probably be more relevant to the solicitor profession than to us. It covers things like PACE and parole. Ongoing work that is probably more relevant to the Bar includes that on what are called refresher fees. Departmental officials, the judge and the Criminal Bar are engaging proactively in that. Progress is being made, and we hope that it continues to be made in the relatively short term. If enough progress is made, that will, in turn, have an impact on the limited continuing withdrawal.

Mr Dunne: That is positive. You talked briefly about the lack of transparency and accountability from the Department compared with the experience in other jurisdictions. Can you give us a general overview — not overly detailed — about how the fees compare with those in Great Britain and so on? Where are we with those and where should we be, in your opinion?

Mr Lunny: We are not at all opposed to looking to neighbouring jurisdictions — looking to London and to Dublin — to see whether they have executed similar reforms, for example, and how those have worked out. We have spoken before about the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 in England and Wales, which reduced the scope of legal aid. That had a deleterious effect and essentially drove people who previously got legal aid and were able to resolve disputes through the court to the door of their MPs, social services or healthcare. We are absolutely in favour of us learning from other jurisdictions' experience and mistakes. We are also very much in favour of looking to other jurisdictions to benchmark fees, if a like-for-like comparison can be made. It is important to see what fees are paid for that work in that jurisdiction, if it is similar work. Our point about transparency is more that it is just not clear to us from the documents that the Department has provided to date what it is having regard to from other jurisdictions and, in fact, what other jurisdictions it is having regard to.

To go back to the working party, a point that is made by my colleagues at the criminal Bar is about the comparison in the refresher, which is the fee that you get for each day in court after the first day in court of, for example, a murder case that is running for four weeks . Refreshers for legal aid in a Crown Court in England and Wales are approximately three times our refreshers. We expect the working party to have regard to that point.

Mr Dunne: OK, thanks. That is all for now.

Miss Hargey: Thanks very much for your update. What are your views on the statement that the Minister made in the Chamber?

Mr Lunny: We put those down in detail in our written briefing. When the statement was made on, I think, 11 March, the Minister was performing the important function of updating the Assembly and you, as members of the Justice Committee, on progress. You can see from our written briefing that we think that her update lacked a little bit of important context on some of the figures that were mentioned. It is not an issue that we wanted to get into a row about, if I can put it like that, because things were more delicate then than they maybe are now, and our view was that everybody should be concentrating on getting progress in the working party to resolve the various issues.

I can go into the detail of the context if you want. You will see from our written briefing that we say that some of the figures that were mentioned for what people earned lacked important context. There was mention of a very large figure that was earned by two barristers from April 2023 to December 2024. As you now know, that figure covered 175 Crown Court cases between two people. You can see from the fuller data that the Department of Justice provided to us, in answer to a freedom of information request, that the typical number of cases for one barrister across that period, from April 2023 to December 2024, was 25. The fact that that large total fee for two people related to 175 cases very much suggests that it is payment for several years of work. Because we do not know who those people are, we do not know why, in that period, payment was made for what looks like several years of work. It could be that maternity leave or health problems delayed them in putting in fee notes; we do not know. That is just one example of important context that was missing from some of those headline figures.

Miss Hargey: It is important that you state that, because not everybody who is listening will have seen your briefing paper. That was a concern even when the statement was made.

Another issue that you touched on in your submission is remuneration. You stated that, although the uplift is not the key issue, it is welcome and a step in the right direction, and that job satisfaction plays a key part as well. As we look at reform, what do the Minister and Department need to focus on with regard to job satisfaction? What are the key issues for you in that area?

Mr Lunny: To be frank, for anybody, one issue of job satisfaction is adequate remuneration. That is definitely one area: I am not going to shy away from that.

The Chairperson (Ms Bunting): We will come to remuneration. A number of us have questions around that.

Mr Lunny: Other issues include there being appropriate facilities in which to consult with clients. That is of vital importance to witnesses, victims, accused people and lawyers.

You will see from our document that, since the main recovery from COVID, our Crown Courts have been working at 130% of normal capacity. Courts and Tribunals Service staff, judges, solicitors and barristers are working at a capacity that cannot be sustained in the long term. Many people at the criminal Bar will say, "I can make all my ends meet and pay for the things that I need to pay for, but that is because I am working at 130%. That is not a sustainable level to work at in the longer term. For a proper work-life balance, I would rather do fewer cases — a normal amount of work — but for those cases to paid appropriately". That is not an unreasonable request. I am trying to think if there is anything else on work-life balance.

Ms Kiley: I would like to come in on the remuneration point. When we talk about practitioners requiring appropriate remuneration, it is not just about pounds and pence; it is about feeling valued for the work that you do. As we have said before, the role in our criminal court is becoming increasingly complex. Because of the high volume of work that is required to be done in order to keep cases going and to keep justice moving, and because of the complexity of cases, people are working really hard for what they feel is not fair remuneration. As a result, they feel undervalued, which leads to disillusionment and low morale. Adequate remuneration would go a long way not just in literal pounds and pence but in demonstrating that the Department values the vital work that practitioners do.

The Chairperson (Ms Bunting): We will hold the remuneration issues, because we will come to a section on remuneration.

Mr David Mulholland (Bar of Northern Ireland): I will give a brief supplement to that, which is not about remuneration. Members may have noticed that, in the media in the past few weeks, somebody who had done jury service gave compelling evidence about the toll that sitting on a jury can have, given the gravity and the nature of the cases that jurors are asked to give their full attention to. That is the daily life of a criminal barrister. They do not complain about it, but it is taxing, it is attritional, it is traumatic and it has the after-effects of vicarious trauma. Combine that emotional toll with the workload and the questioning of whether anybody actually fully appreciates that work, and the fact that there is a wide range of alternatives that those same talented barristers could give their time to, and that is when the work-life balance issues kick in.

Mr Lunny: I will mention two other things, aside from remuneration, that can improve the quality of life for people who do that practice. When they, as people who are enmeshed in this type of work and in this system, are asked to contribute to things like public consultations or a working party, their experience-based input needs to be listened to and not disregarded entirely and just have lip service paid to it. They should feel that the consultation process is a genuine one in which their experience is listened to and factored in to the design of the reform programme.

Another issue, which is related to remuneration but is not about fee levels, is payment times. Having to wait an unreasonably long time to be paid an out-of-date fee is the straw that breaks the camel's back for some people. We, in the Law Society, took a judicial review about payment times. The judgement was given in January, and we won that. It is important to acknowledge, in fairness to the Department, that, for some time now — during the life of that judicial review and since it — the Legal Service Agency's payment times, particularly for criminal legal aid, are much better than they have been in a long time. The Legal Services Agency has really stepped up and massively improved its payment times. That makes a big difference to people's quality of life at the criminal Bar.

Miss Hargey: Withdrawal of service also came up in the statement. I was concerned about the figures that were given in that because they were for more complex cases, and using those as an example of withdrawal of service may not give an accurate picture. What is your perspective on where things are at the moment, including on discussions with the Department on the broader piece? If agreement can be reached, might the action cease?

Mr Lunny: On a positive note, the complete withdrawal from all Crown Court cases that went on in January and February came to an end at the end of February. The only ongoing withdrawal is the refusal to take new instructions in category A cases — murder and manslaughter — new multi-complainant sex cases and retrials. That action was taken, again, as a last resort. It will take time for that action to have any impact because, as you know, even when our system is working optimally, it takes quite some time for a case, particularly a murder case, for example, to get from the point of being returned to the Crown Court to having its trial. We do not believe that that is having a significant impact on the system yet, which is good — there is time to resolve the dispute before it has a significant impact.

If the work of the working party under Judge Burgess, particularly that on refresher fees, bears fruit in the short term, that will make a significant, long-overdue difference to criminal law practitioners in the Crown Court, and that is the sort of development that, we think, might enable the criminal Bar to review its position and bring the withdrawal to a complete end. I do not want to go into too much detail about what the working party is doing, but, if it continues to make progress in the short term, there may be a favourable outcome to all of that, which is what it is working towards.

Miss Hargey: Thank you. Chair, the other questions that I have are for the Department. I would like an update on its failure to conduct the statutory review and on the next steps in its legislative schedule. I would also like to know about the evidence base that informs the broader programme. What evidence base is the Department using? Which jurisdictions is it looking at? If there is a co-design process for the programme, why does the Department not share its evidence with those who are trying to co-design it?

The Chairperson (Ms Bunting): That is fair enough. We will keep a list of the questions and approve them towards the end. Committee officials have a note of them. Thanks, Deirdre.

I see that other members want to come in. We want to touch on the taxing master, remuneration and a couple of other bits and pieces. Justin, is the issue that you want to raise a follow-up to the questions about the statement, on engagement with the Minister and so on, does it fall into one of those categories, or is it something different?

Mr McNulty: I am following up, Chair.

The Chairperson (Ms Bunting): Go ahead.

Mr McNulty: Thank you, Donal, Denise and David. The tone of the communications between the Minister and the Bar has been tetchy, to say the least. It almost seems as if you are at war; I have referenced that before. Is that a barrier to resolving the issue? Has the potential for mediation been explored? When I asked the Minister, she said that the Department is not the employer of the Bar, so mediation is not required. The Minister's understanding of when mediation may be appropriate is probably a little off. What is your sense on that front?

Mr Lunny: I think that relations are better now, at the start of May, than they were in March, and I think that they were better in March than they were in January. The work to improve things is largely being done through the working party, but it is important to acknowledge that a departmental official, Mr Allison, who recently gave evidence to the Committee in the Senate Chamber, has regular meetings with David, our chief executive. That means that each knows what the other says, and we keep one another up to date. There is now a good line of communication between the Department and the Bar. We are not talking to each other through the media or statements in the Assembly.

The Chairperson (Ms Bunting): Just to clarify, Donal: that was the all-party group (APG) on access to justice, not the Committee.

Mr Lunny: Sorry, you are absolutely right. You are familiar with Mr Allison. We are in regular communication with him, as is the Law Society. Most of the Department and the Bar's heavy lifting is currently done through the working party. Relations are better now than they were two months ago. That is not to say that they could not improve further, but they are in a better place than they were.

Mr McNulty: Thanks, folks.

The Chairperson (Ms Bunting): We move on to the issue of the taxing master.

Ms Ferguson: Thank you for coming forward. Your papers set out clearly that we still have a crisis — we still have underinvestment, a backlog and a failure to review. I am pleased to hear that the situation with delay in payments has improved to give you some solace, but the Bar is still pretty stretched and under pressure. It is great that the working party has made progress. I would like to know more about the fees. I am still a bit confused about the Department's role and that of the taxing master in the review of legal aid. We seem to be at opposite ends. The taxing master was involved in a past review, but the Department says that the taxing master should not be involved in a review. Has anything changed or moved on?

Mr Lunny: Taxation reform is one of what the Department calls the five pillars that are guiding its whole enabling access to justice reform programme. In simple terms, as you know, the Department wants to remove the power to tax any legal-aided fee. We are opposed to that for the reasons that we went into in our previous evidence session on the Justice Bill, and I will not revisit them. The work of the working party, although about levels of fees, is largely separate from the taxation issue because those fees are not subject to taxation; they are one of the exceptions. If you recall, when we talked about taxation, we said that one of our several concerns about the Department replacing taxation with something else is that, on the small number of areas in which it has done that in the past, one of which is the Crown Court, it has promised in a statute to review those fees every two or three years and then never lived up to that promise. One of the major tasks of the working party is to look at broad reform of the fees — not just at the interim 16% but at what the more substantial reform of Crown Court fees should be. However, that is separate from the taxation issue.

The Department wants to remove taxation, step by step, from the parts of criminal legal aid that it still attaches to. The first part that it wants to remove taxation from is High Court bail applications. As we mentioned in the initial evidence, the Department said that it was going to produce a paper on that in March; that paper has not been produced. For all the reasons that we went through in the Justice Bill evidence session, we are opposed to the changes to taxation.

The Chairperson (Ms Bunting): We will have some taxation issues coming up later on our agenda.

Ms Ferguson: Have we any update as to why there has been a delay in the review.

Mr Lunny: We do not, and —

Ms Ferguson: Were we even informed how the Department went about it?

The Chairperson (Ms Bunting): That is probably a question that we need to put on our list of questions for the Department.

Ms Ferguson: Yes. When we had the Department back at the Committee, the officials were not clear about how they were going to go about the process of review.

Mr Lunny: As you know, the Department wrote to you after our evidence session and suggested that it had already consulted on taxation reform. It criticised our level of engagement in that consultation. We do not entirely accept that. The Law Society put in a paper that made our points, and that did not make any difference. The Department, in the explanatory notes to the Justice Bill on clause 29, says that it will consult about what it will replace taxation with.

Obviously, in the enabling access to justice reform programme, one of the things that the Department says in its delivery plan is that there will be consultation on its proposals to reform taxation. Therefore, it is something that the Department intends to consult on. We will certainly engage firmly with the Department, as will others, when it gets to that point. We do not know why the Department has not published the document that it said that it would publish, but, in fairness, it may well be because the Department has limited resources and a lot of effort is going into the working party work.

The Chairperson (Ms Bunting): The Department is coming to us. Is that with oral stuff, Kathy?

The Committee Clerk: No, it is written.

The Chairperson (Ms Bunting): We are getting a written briefing on taxation of remuneration for High Court bail applications from the Department on 29 May.

Mr Lunny: It is coming.

The Chairperson (Ms Bunting): It is in train.

Ms Ferguson: Finally, it was clear in your presentation — we are well aware — that 16% is the floor. Regarding the working group that is looking at the fees, do you have a timeline? I ask that because you want to stabilise; you want to create a momentum for change. Is there a timeline for the working group?

Mr Mulholland: As the chair mentioned, a stocktake was done at the end of March, identifying items that could be worked on in any upcoming legislation in May. Other items will not meet that window. The next stocktakes, for want of a better word, by the working party will probably be at the end of June and, potentially, in the early autumn. Broadly, we are comfortable with that, because the energy from the chair is to be commended and the collaboration is good. Ideally, one wants to fix everything in the shortest possible time and, if it requires legislation, to do it all at once. However, we appreciate that some things will require a bit longer than that to work through. As many things as possible that can be achieved now should be, but, if some have to be in the June outcomes or recommendations — or in September — so be it. It is certainly moving and being moved with real energy by the chair of the working party.

Ms Ferguson: That is good to hear. Thank you.

The Chairperson (Ms Bunting): Folks, I have a couple of questions around remuneration and around the statutory registration scheme. Some of my questions are to assist my understanding of some of the things that have arisen.

We have addressed the issue of sources and the summer consultations. What is the frequency of reviews of remuneration supposed to be?

Mr Lunny: It was initially supposed to be every two years. It was then amended to become every three years.

Mr Mulholland: There is an obligation to keep the general system and the specific fees under review, so there are two aspects to the reviews that are meant to be done with that frequency.

Ms Kiley: It is also important to say that the reviews are required in respect of not only criminal legal aid but family legal aid provisions. The remuneration rates for family legal aid have been set since 2015. They have not been reviewed, and there is a statutory obligation to review those too.

The Chairperson (Ms Bunting): OK.

A lot of the issues that the Bar has seem to be around process. I have had discussions with Sinead about the evidence base and its being there for the criminal side. In your view, it is not there for the 16% increase in family and civil matters. If you were the Department, you would ask, "Well, do you not want the 16% increase?". Let us be honest.

Mr Lunny: Absolutely.

The Chairperson (Ms Bunting): What do you think is a reasonable percentage for the civil and family arena? What is your ask in that arena?

Mr Lunny: Our point is that it is partly a process point, but it is more that a very substantial amount of work by the Law Society and the Bar went in to providing evidence to Judge Burgess during 2023 and 2024 . It was done, at pace, in a very collaborative way, with substantial amounts of evidence as to the work that solicitors and barristers do in typical Crown Court cases, identifying what is wrong with the current system and the fee levels and the fee structures. That led to Judge Burgess producing, as you know, a very detailed and lengthy report with a series of carefully crafted, interdependent recommendations, one of which was an interim increase in criminal fees of 16%. Anyone looking at that report could understand why he was doing it and why he was picking that figure. That all makes sense, even though it is only a first step. The issue that we have is that the Department then just read across from that that the same increase would apply in respect of family fees, yet there is no equivalent evidence-gathering process and no equivalent independent report.

The Chairperson (Ms Bunting): I understand your issue there, but what percentage would you like to see there?

Mr Mulholland: I will share an insight that was helpful from the review with Judge Burgess. Talking about what percentage you apply to an original fee is perhaps the wrong question, with all due respect, because the original fee may have been constructed at a time when the work was totally different. There comes a point where, almost no matter what percentage you apply to a fee that is out of date, that will soon become out of date as well. The better approach is to get to what should be in the fee today and what complexities are involved in that work today compared with when the original fee was struck. You can only get to those kinds of more underpinning analysis points if you do a review similar to the review that happened with —.

The Chairperson (Ms Bunting): Essentially, an independent one.

Mr Mulholland: Exactly.

The Chairperson (Ms Bunting): It was an internal kind of thing, was it?

Mr Lunny: We do not know. We would like the family Bar to have the same opportunity that the criminal Bar did, which is to engage in a process where Bar members provide evidence and sit down with the independent reviewer and with their solicitor colleagues and they all feed in with their evidence about how the work involved in such cases has changed over the past decade, how many hours they spend on them and that sort of thing, so that they can work out what the appropriate fee structure should be now. The reality is that we do not know what the correct amount is. There has not been the same process, and they are entitled to the same attention and the same care and consideration that the criminal fees have received.

The Chairperson (Ms Bunting): Presumably, you do not want to wait for that work to be done before accepting 16%.

Mr Lunny: No, and it is welcome. I think that we have made it clear that it is not really possible to look at that figure and say that we understand where it is coming from. It has not been, for those areas of work, subject to the same analysis and evidence-gathering that the criminal one has. Maybe the side issue that arises from that is that it suggests that the Department sometimes has a bit of a pick-and-mix attitude to evidence. It is doing something for the criminal Bar because there is evidence there, yet it is able to bring an increase in elsewhere without the same relevant evidence. There is a bit of an inconsistency of approach, but it is welcome. For fees that are grossly out of date, any increase, even of an interim nature, is welcome, so nobody is going to turn it down.

Mr Mulholland: We all want to break out of the cycle of, every two to three years, arguing about what a percentage should be. The risk is that, well intentioned though it undoubtedly is and welcome compared with nothing that any increase is, as I said, if the work and conditions underpinning what made up the original fee to which you are applying that percentage has totally changed over time, we would be better rebasing the fee rather than applying a percentage to it that will, sooner or later, run out of steam.

The Chairperson (Ms Bunting): May I check one thing, please, about your paper? You have cited the issues around the figures. I ask you to turn to the second section of your paper, which is about the ministerial statement. In an answer to a question on her statement, the Minister referred to the period between 1 April 2023 and 31 December 2024. At the very bottom of that page in your paper, you say:

Given that you use "in fact", is there an issue there?

Mr Lunny: What she said in the Assembly on 11 March 2025, as I understand it, was that the period was 1 April 2023 to 31 December 2025, which could not have been right. The Hansard report records it as 1 April 2024 to 31 December 2024, when, in fact, we have had a freedom of information response saying that what she was referring to was 1 April 2023 to 31 December 2024. Our second paragraph under the title 'Ministerial Statement' should probably say —.

The Chairperson (Ms Bunting): 2025?

Mr Lunny: Yes. It should say 1 April 2024 to 31 December 2025, which is what she actually seems to have said. It was actually a 21-month period from April 2023 to the end of December 2024. You are right; there is a bit of a mismatch in fact, when we are actually quoting the same —.

The Chairperson (Ms Bunting): That is really helpful, because I was not sure about what was the accurate position.

Mr Lunny: The Department and LSA have confirmed that what she was supposed to say was 1 April 2023 to 31 December 2024.

The Chairperson (Ms Bunting): In the course of the working group discussions around remuneration, has the Department or anyone outside it given any indication about future rate reviews and timescales?

Mr Mulholland: It is acknowledged that it is something that needs to happen, but the mechanism as to how it will happen is still to be worked out.

The Chairperson (Ms Bunting): OK.

Mr Lunny: One feature or point that is relevant to that is that Judge Burgess recommended that a legal aid advisory board be set up. We understand that one of the functions of that board may have been to keep all fees under review almost on a rolling basis. The Department has not committed to setting that up, but there has been a suggestion that, if the working party appears to function well, it might be a template for a body such as a legal aid advisory board. The rationale that we have been given for that recommendation on a legal aid advisory board not being immediately accepted is that there is a general directive, if I can call it that, that we are not to be setting up more arm's-length bodies. If anything, the Assembly is to be reducing the number of those, so that is the rationale that lies behind that. The working party has a potential to influence or shape some form of body that would have a review responsibility, as I understand it.

Mr Mulholland: In some ways, Chair, that goes back to your question about the right figure for the family fees. The only way in which one can review into the future or track a fee into the future, whether that be through a committee or by constantly reviewing data, is to know what makes up that fee in the first place. If we have lost the connection to what makes up that fee, and all that we are doing is adding a percentage to it, those future reviews become difficult, because what are you basing your increase on? The working group's approach will be to try to establish the elements of work, the time, the complexity and the skill involved that would make up that fee. You can potentially track those over time, so that your next review becomes a lot easier. Hence, with that added explanation, you can understand, perhaps, why the family Bar is saying, yes, exactly, that those mechanisms or drivers behind what makes up a proper fee should also be unpacked for its area of work.

The Chairperson (Ms Bunting): I absolutely agree with you, but I will say, in the nicest possible way that I can, that the Department will say that that is equally applicable to brief fees. This Committee would say the same thing.

Mr Lunny: As I said, we have sent you a paper at that last one, but we are happy to engage with the Department about brief fees. We think that there is an element of misunderstanding, sometimes, or a desire to base views on outliers rather than the norm or the majority. I should say, however, that it is important to make it clear that we would say that it is in everybody's interest that, whatever review mechanism obligation body there is, one is set up. It is in everybody's interest — the Department, solicitors, barristers and, most important, the citizens who use courts and find themselves needing legal aid whether in a family court or a criminal court — that fees are reviewed when they should be through some mechanism that we all agree on, rather than through strikes and negotiations.

The Chairperson (Ms Bunting): And crisis.

Mr Lunny: And crisis.

The Chairperson (Ms Bunting): Perpetual crisis.

Mr Lunny: Exactly. We do not want a repeat of the crisis point that we have reached in recent months.

The Chairperson (Ms Bunting): Fully understood.

Turning to the statutory registration scheme, it was the first that I had heard of that, and you referenced statutory charges and private financing. Will you explain that, so that we have a record of what it is, please?

Mr Lunny: There is a degree of opacity about what the statutory registration scheme might involve. We say that it is a solution to a problem that does not exist. The motivation behind it appears to be to ensure that the end user of legal aid services — the accused person in a criminal case or a participant in a family case — and the body funding legal aid can be sure that the lawyers acting are of a certain quality. Obviously, to be a solicitor or a barrister, you have to have a law degree or its equivalent at undergraduate level. You have to have your professional qualification. None of those things is easy to get. You cannot come to the Bar without a 2:1 degree, for example. You then have to undergo an apprenticeship if you are a solicitor for two years or a pupillage as a barrister for one year. You will have gone through all that quality control. You are then subject, in each case, to a rigorous professional conduct code, a breach of which can ultimately see you lose your job. Solicitors are regulated by the Law Society and the solicitors disciplinary tribunal; the Bar is regulated by its professional conduct committee and its code of conduct. We then both, separately as professions, require all our members to undertake continuing professional development every year in specified areas to ensure that their practice remains current.

At the Bar end of things, we do not get work unless a solicitor chooses to brief us. That is a very important quality control. If you are not good enough, you will not be briefed. At the solicitor end of things, if you are not good enough, people will not come to you. They will go to one of a large number of other solicitors. With all those mechanisms in place, we were perplexed at the need for some form of statutory registration scheme for lawyers to be able to do legal aid work.

The other layer of regulation that I should mention is that, since a statutory registration scheme was initially muted, we are now going to be subject, for service complaints, to the outworkings of the legal services and oversight regime of the Legal Complaints and Regulation Act (Northern Ireland) 2016 and the Legal Services Oversight Commissioner. The 2016 Act is coming into force in September this year, so, alongside our and solicitors' professional misconduct regime, we will now be subjected to a service complaint regime. We each have to set up mechanisms to deal with that internally, and then we have to set up, under statute, a Bar complaints committee and a solicitors complaints committee to deal with service complaints that cannot be resolved at the first stage. Those committees have a majority of laypeople on them, and they have to be chaired by a layperson who is not and has never been a lawyer.

The Chairperson (Ms Bunting): Do we know how all that is to be funded?

Mr Mulholland: The professions are funding it.

Mr Lunny: We have to fund the service complaint and the Legal Services Oversight Commissioner regime.

The Chairperson (Ms Bunting): Do you already fund the existing scrutiny bodies?

Mr Lunny: Yes.

The Chairperson (Ms Bunting): You are now being asked to fund something additional without —.

Mr Lunny: We are being asked to fund it, and we are funding it. That has all been agreed and is coming into force in September. With all those layers of regulating and ensuring that the people who provide legal aid work are of sufficient quality, we are perplexed at the idea that you need yet another layer of accreditation in order to do legal aid work.

The Chairperson (Ms Bunting): Has a rationale for it been provided?

Mr Lunny: As I said, it is a solution looking for a problem.

Mr Mulholland: There might be a general misunderstanding that all those mechanisms exist, and we are more than happy to try to explain and demonstrate them. There may be a public education dimension to it, and there may have been a wrong assumption that regulations remain static. For the reasons that the chair has just said, it is anything but. It has been constantly evolving and proactively improved to serve the needs of the clients. The rationale may be born out of perhaps a limited understanding of how the system works and the wrong assumption that it would remain static. As the chair said, we have extensive regulatory regimes in place for the input and quality control and the complaints mechanism to address it if it is perceived to have gone wrong. We fund it all. We fund more than we used to. We are working with the Department of Finance on the statutory instrument, which is the Legal Complaints and Regulation Act (Northern Ireland) 2016. We cannot see how space or value is created for a further scheme.

Ms Kiley: We cannot see it because it is not evidenced in the programme. It is not clear to us in any of the papers that accompany the programme why the Department considers that a statutory registration scheme is necessary, and necessary now. All the developments that the chair and chief executive have detailed, such as the significant legal complaints and oversight developments and the statutory developments connecting to those, are not mentioned in the evidential papers that support the reform programme. It goes back to some difficulties that we had with the evidence base and being able to properly understand the rationale for proposals.

The Chairperson (Ms Bunting): Can we add that to our list of questions for the Department, please? We need to understand the rationale behind that.

Mr Lunny: That would be very helpful.

Mr Mulholland: We submitted a precis of all the things that we have mentioned before the Minister's announcement. We were, therefore, as the vice chair said, certainly disappointed that no acknowledgement was given of the fact that we had provided contemporaneous updates on all those reforms that had already happened in the regulatory space.

Mr Lunny: I think that I am right in saying that a statutory registration scheme was one of its "five pillars of reform", as it described them. When we submitted a detailed document setting out all those layers, we got a response that was less than forthright in committing to actually bringing any of that to the attention of the relevant people, so it was not a complete surprise when we saw a document that did not reference the Legal Services Oversight Commissioner or, importantly, that our professional conduct regime had changed more than a year ago. The standard of proof in professional misconduct proceedings had changed for the first time from the criminal standard — the higher standard — to the civil standard. That makes it, in theory, easier to convict somebody of professional misconduct.

The Chairperson (Ms Bunting): It is the balance of probabilities issue.

Mr Lunny: Exactly. We have done that before —.

The Chairperson (Ms Bunting): We are due to get information on that from you, which should also help to inform us in that area.

The final point on that was private financing.

Mr Mulholland: I have to confess that we are still learning about that. Again, as with a few other areas, it is referenced in the reform programme. It has not been the topic of regular discussion or, arguably, any discussion with the Department over recent years. We know of its existence in other jurisdictions and that it has been looked at in previous access to justice reviews, but it is a good example, I suppose, of what we were referring to: since those other reviews, we have not been made aware of anything current, compelling or even the specifics of what is envisaged in that space for this jurisdiction. We wait to find out. It is certainly not something that we see an imperative to work on right now.

The Chairperson (Ms Bunting): We can add that to our questions, if members are agreed.

I just want to check whether I actually want to ask you this, because you may have covered it already: it is about the lack of clarity on certain things. Can you explain? I am not always familiar with all the processes. Under point 5 of your submission, on the lack of clarity throughout the programme, the final sentences of the second paragraph state that:

Mr Lunny: That refers to the fact that the summary report for the civil legal aid review has a bit more detail in it. It raises the potentially alarming issue that judicial review leave applications would no longer be within scope for receiving legal aid. However, the delivery plan does not mention that at all. It just has a general reference to reviewing the scope of civil legal aid, so it is not clear whether that is something that has now changed between the publication of the first of those documents — the summary report for the civil legal aid review, which came out in the autumn — and the delivery plan, which was consulted on between January and the end of March.

The Chairperson (Ms Bunting): Can we seek clarification from the Department on that point, as well, please? Are members agreed?

Mr Lunny: It may well be that, because of the enormous breadth of the ambitious reform proposals —.

The Chairperson (Ms Bunting): It may just be inconsistency of language.

Mr Lunny: The inconsistency may have crept in because there is so much to cover.

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

Does anybody have anything further? We are all content. Thank you very much, everybody.

The final point that I want to make — I made the same point to the Law Society — is that the Committee absolutely sees the social value of legal aid. We believe that there should be fair payment for work that is undertaken. We understand the crisis that exists in the profession around some of the issues, and it is important to put that on the record. However, as I said to the Law Society, we want to ensure that there is transparency on the issues and value for money for the taxpayer in circumstances in which budgets are incredibly restricted. That is where we are coming from. We understand why the crisis exists in both professions. It is important that, as we work through the issues, you understand where the Committee is coming from. We see and understand the problems, and we are glad to hear that the working party is resolving some of the issues. We trust that it can be resolved in its entirety very quickly, certainly with regard to the action.

Thank you. The Committee will follow up on some of the points, and the responses that we receive will be publicly available. Thank you very much for your time. It is greatly appreciated.

Mr Lunny: Thank you, Chair and Committee members. We will send the individual consultation responses to the Committee.

The Chairperson (Ms Bunting): That would be helpful. That is great. Thank you very much.