Official Report: Minutes of Evidence

The Chairperson (Mr Frew): The witnesses providing evidence today are Steven Allison, director of enabling access to justice division; John Bradley, legal aid reform branch, enabling access to justice division; and Chris Barry, taxation reform branch, enabling access to justice division. I welcome the witnesses to the meeting. Steven, Chris and John, you are very welcome here to the Committee. I invite you to make an opening statement.

Mr Steven Allison (Department of Justice): Thank you, Chair and Committee members, for the opportunity to attend today to provide an update on the enabling access to justice reform programme and the planned approach to taxation reform. I am conscious of your time, so I will endeavour to keep my opening remarks brief. I hope that the papers that were provided in advance of today have been helpful.

As you are aware, we undertook public consultation on the sequencing and priorities that were set out in the delivery plan that was announced last December. I am grateful to everyone who provided a response to that consultation. Those responses have been carefully considered and have informed the development of a revised delivery plan. As I noted in the papers, we are just waiting for the final part of the jigsaw, which is the report from Judge Burgess and the working group, coming through at the end of the month to inject whatever has been agreed through that working group into the plan. We will share it with Committee as soon as that has been developed. As we note in the briefing pack, the scope of the reform programme remains largely unchanged. The sequencing has been altered. We recognise that it covers a wide spectrum of areas which, essentially, fall under four main work streams, namely legal aid reform, covering remuneration and wider structural reform; taxation reform; enhancing support for citizens; and developing alternative dispute resolution outside of the court arena. I will turn to each of those briefly.

On legal aid, there is, and has been, considerable focus on the ongoing reform of legal aid remuneration, with significant time and resource being invested through the working group that was established in March under the chairmanship of Judge Burgess to progress further changes to legal aid fees within the criminal legal aid sphere. We want to progress any further legal aid fees beyond the raft of amendments that fall under what have been pulled together and collectively described as "the 16% uplift". Although those uplifts have not been implemented as quickly as we had planned, they are now being delivered in line with the timetable that was set out by the Minister at her recent meeting with Law Society and Bar Council representatives on 5 November. The new fees, and payment of the backdated fees, are anticipated to be available from early January. To give the Committee some sense of scale with regard to the backdated payments, at the end of October there was approximately £4·6 million of backdated payments in the system, ready to be issued automatically once the enabling legislation comes into play in the new year.

Significant progress has also been made on further amendments to fees in the criminal space, specifically on Police and Criminal Evidence Act 1984 (PACE) fees. We are working with the Solicitors' Criminal Bar Association (SCBA) to develop and implement the pilot on PACE as soon as possible in early 2026. We are also making progress with the SCBA on the development of a pilot to streamline some processing underpinning fees within the Magistrates' Court arena. Again, the aim is to implement that pilot early in 2026. Less progress has been made with the Criminal Bar Association (CBA). The main focus from April has been on development of a refresher fee pilot. In early August, we issued proposals on the pilot to all stakeholders, which would see a significant increase in the level of refresher fees in excess of the 25% recommended by Judge Burgess in his August 2024 report. The pilot proposals have broad support from all stakeholders with the exception of the CBA at this time, but it is important for me to highlight that representatives of the formal CBA, as you know, resigned a week or so ago. The former committee invested significant time, alongside Judge Burgess, myself and my team, in progressing those matters.

Given that we have a mechanism in place under the chairmanship of Judge Burgess — that is, the working group — coupled with the fact that the Bar described the meeting with the Minister on 5 November as "positive, constructive and reassuring" — I know that the Bar Council representatives relayed that to the CBA members at their EGM on 7 November — it was disappointing and deeply concerning that a number of CBA members had to be persuaded by the Bar Council over that weekend not to withdraw from all Crown Court cases with immediate effect. We remain committed to engaging through the working group with all parties to progress further reform of legal aid fees. Judge Burgess remains committed to delivering an agreed road map/action plan to progress reform, with that report due by the end of this month. I am confident from the discussions that I have had with the Bar Council, the SCBA and the Law Society that there is still a remaining commitment. I have not yet met with the representatives of the CBA: I hope to do that in coming days. We will see whether we can take forward and pick up from where we left off on 5 November.

On wider legal aid reform, written briefing on the current policy options under consideration will be provided to the Committee for your consideration at next week's meeting, but John and I am happy to answer any immediate questions that the Committee might have on that today. On taxation reform, we have set out in the briefing pack the rationale for the revised approach to taxation reform and how we propose to take that work forward. Again, Chris and I will expand on that further today, if it is helpful. With regard to the enhanced support for vulnerable groups, we are developing proposals within the planned structural reform of legal aid to make it simpler for victims of domestic abuse to access legal aid, and also to introduce safeguards to reduce the opportunity for individuals to weaponise legal aid to induce more stress and trauma in victims. Again, if it is helpful, we can expand on that further.

Finally, looking beyond legal aid and taxation, we are working with key stakeholders such as Ulster University, the Law Society and other sectoral organisations to develop alternative dispute resolutions for citizens. For example, we are developing options for a mediation pilot or pilots with a number of those groups, and we are currently working with Ulster University to introduce an online dispute resolution pilot in early 2026 relating to small money damages cases. Chair, I promised to keep my remarks brief, so I will close at this point and take questions.

The Chairperson (Mr Frew): Thank you very much, Steven, for that. I will put it out to members straight away.

Mr Beattie: I will be brief. Thank you for that, Steven. A lot of this is complex, and I fully understand that. I will ask a quick question on the peripheries of what you were telling us about. We used to have legal aid tables, and we are told by the Justice Minister that we are going to get such tables back again so that we can understand what firms are being paid from the legal aid budget, which is quite substantial here in Northern Ireland, and, more importantly, what the case is, so that we can have better transparency and understanding on whether we may be spending a lot of legal aid on legacy and historical cases or contemporary cases. Is there any word on that? Just to finish it off, to save me from having to ask two questions, will you give us an update on where we are on fraud and error as well? That is a question that I ask all the time.

Mr Allison: I will reverse those. On fraud and error, Doug, to be honest, I am not the best person to ask. Paul Andrews has all the details on fraud and error as the chief executive. I do not have those available to me immediately, but I will speak to Paul after this and get something to the Committee.

Mr Beattie: I ask because the figures have not been released for this year yet, have they?

Mr Allison: I am not aware of it.

Mr Beattie: The figures were released for last year, but not for this. I want to see whether we are still on the same trajectory — that is, improving and cutting down on fraud and error. I want to understand whether the accounts have been qualified again this year. They have been qualified every year since. That is all I am after, just to understand whether we are going in the right direction.

Mr Allison: I will ask. As I say, I would be stretching into space there. Paul probably would probably have my legs for it.

Mr Beattie: That is fine.

Mr Allison: As to your first question, it is more a matter for the Legal Services Agency, but the Minister remains committed to publishing the details. We have two ongoing cases before the courts challenging the release of information. Until we get clarity from the courts and the outcome of those judgements, we just have to wait; it would be inappropriate for us to move forward on that. There is personal data and information there from which people can do a jigsaw to find out who is involved in what, and there are issues attached to that. The Minister is committed to transparency and wants to release information. I can give you some figures today on the distribution and levels of payment for criminal legal aid, but not by firm. I would not know that.

Mr Beattie: No, that is fine, Steven. Thank you for that. It is just about making sure that that is the direction that we are going in. Of course, if there are court cases, we have to wait for the outcome of those, but if those cases are resolved positively, and if the Minister is still going in that direction, there should be no other impediment for that to be the case.

Mr Allison: There should not be. It will be up to individuals, and when we do that there will be a process for Paul to inform individuals and companies when something is going to be published. They might take decisions that take it into a different room, but the Minister is full square behind the principle of transparent publication of the details of the spend and distribution of legal aid.

Mr Beattie: Good enough. Thank you.

Mr McGlone: You mentioned a figure of £4·6 million in back pay, or arrears, if we can call it that. What period of time does that stretch over, and how many hours does it involve?

Mr Allison: I do not have the hours, but that figure speaks to a number of dates. The vast majority of the backdating goes to 1 December, which applies to the 16% and all the recommendations that flowed from Judge Burgess's report that we accepted.

Mr McGlone: Sorry,1 December?

Mr Allison: 2024.

Mr McGlone: OK.

Mr Allison: The next date that we move to is, I think, 8 April, when we had agreement from the Minister on changes to fees for immigration and asylum cases. The principle was that, once it was agreed, we backdated to that point. A number of fee changes were made to PACE and parole, which I worked through with my colleagues from the SCBA, from January to the end of March, and we backdated those to 15 May. There are three dates that relate to the backdating, and that £4·6 million encompasses all of those. The £4·6 million also includes all civil, family and criminal fees that were uplifted.

Mr McGlone: It would be helpful if we knew how many hours that covered. I presume that that is the basis on which you calculated it.

Mr Chris Barry (Department of Justice): Not necessarily. The criminal fees in particular are standard fees, so there is no time-in-line assessment. It is based on —

Mr McGlone: I take it that some of them will be hours and some will be just amounts due, but how do you calculate it?

Mr Allison: It is based on the bills that have already been submitted, and the legal aid management system (LAMS) — the payment system — has been amended to automatically update —.

Mr McGlone: I get that, but presumably some of those bills will be for hours and some for service rendered, if we can call it that.

Mr Allison: There would be a combination of composite fees, standard fees and time-in-line fees.

Mr McGlone: It would be helpful to have that information. It would give us a better indication as to how it is going or where it is going.

Mr Allison: I think that it would be possible for us to give you a broad breakdown of family and civil and get it to as granular a level as possible. I will have a chat with Paul in payments.

Mr McGlone: Whoever is paying it and calculating it would probably need to know.

Mr Allison: I know that Paul has that information at the touch of a button. He can give me each week what the figure is. I am more than happy to do that.

Mr McGlone: Thank you for that. What is the thinking around the taxation of legal costs? The concept as I understand it is that there is an independent body that determines those fees. Explain to me the rationale of bringing that under the control of the Department.

Mr Allison: What we are proposing bringing under the control of the Department is setting the level of the hourly rate for solicitors and setting a rate for barristers — hopefully, an hourly rate. What we are not bringing into the Department is the assessment role that the taxing master currently has, which is to look at the bills, brief fees or whatever is submitted, based on hourly rates or a brief fee basis, and determine if they are appropriate for the work done. We are not changing that. We are proposing keeping the taxing master and the independence and value that he brings to that role. However, for accountancy principles, transparency and predictability of the budget, it is important for the Department to be able to come before this Committee and the Assembly to say, "This will cost this amount of money. We are setting an hourly rate of x for solicitors. It will be reviewed each year, every two years or whatever. Similarly for barristers." The only thing that we are bringing under our control is setting the rate. What we are not doing is looking at the hours and assessing the hours that someone works. That will be a matter for the taxing master to say, "The hourly rate struck at the moment is £155, and 155 times 100 hours equals what?"

Mr McGlone: What is the point of him, then?

Mr Allison: The value that the taxing master provides in this role is that he is best placed to decide whether the hours that are being claimed are appropriate for the work done. It is about looking at a bill and seeing if someone is asking for 100 hours at x pounds an hour. At the moment, the taxing master is looking at some of those bills and saying, "I am not content".

Mr McGlone: Sorry, I am being confused by this. It seems to be going from streamlining something into making it more complex — to my mind, anyway. If you have an independent arbitration body, or whatever it is, that arbitrates independently on —. I presume that you are not for a minute suggesting that the taxing master has been overly generous to legal colleagues, or anything like that.

Mr Allison: Definitely not. I am not making any comment on the taxing master.

Mr McGlone: Well, if it ain't broke, why fix it?

Mr Barry: There are two elements. From an accountability point of view, there was a Public Accounts Committee (PAC) recommendation that the Department look at this and look at bringing the expenditure under the purview of the accounting officer. However, the system as it operates at the minute is that counsel submit a brief fee for the vast majority of the work that they do in the High Court and the Court of Appeal. That is one line on a bill. It is £100,000, and it is not broken down. From an accountability point of view, we want to set an hourly rate that counsel will work to. They will put their time down, and there will be a detailed demonstration of the work that was involved for what is public money going out. Solicitors do that at the minute; counsel do not.

Mr McGlone: I am trying to get to where the problem is here. You have already said that you do not question the independence and professionalism of the taxing master. I do not know who the person is, but, in other words, he or she does a good job. What you are saying is that you remove an element of that independence from the taxing master in the determination over to the Department and create another role for the Department.

Mr Barry: In terms of a role for the Department in that scenario, the taxing master is assessing those bills, so the Department will take no role in that. What we are saying is that we have a budget that we have to live within. The taxing master recently increased the solicitor hourly rate by 53%. We have to live with that and try to work with that. One of the things that we are doing is saying that, as regards accountability and transparency on where that extra money comes from, we need to business-case that and do an economic appraisal of that. That has not happened in this instance because the master has taken a decision, as he is within his rights to do, because he sets rates for every case in Northern Ireland, not just for legal aid. However, we need to introduce some level of accountability and transparency for the Department's budget. The master will continue to assess and bring his expertise, but we will have —.

Mr McGlone: Sorry. I am trying to get where you are going here, but you have already said that the taxing master is efficient and independent, yet you introduce accountability and transparency to it. Where I am going with that thread of argument is that there is an absence of accountability and absence of transparency. Is that a statement that the Department is making in regard to the decision-making of the taxing master?

Mr John Bradley (Department of Justice): The original rationale for the PAC recommendation was the principle what, when people are taking decisions about the expenditure of public money, they have to be accountable eventually to the Assembly for those decisions. The taxing master is currently taking those decisions as an independent judicial figure. He is not answerable to the Assembly for how to take those decisions, so the rationale, in the end, for allowing the Department to set the rate at which those bills are paid, rather than having it done by an independent judicial figure is that those setting the rate — the Minister or the Department of Justice — will be answerable to the Justice Committee and the Public Accounts Committee for how those decisions about public expenditure are made. The assessment of the bills remains with the taxing master, but the idea is that it will be done in line with the rates that have been set in the way that is accountable through the normal mechanisms to the Assembly.

Mr McGlone: I am still intrigued and puzzled by this. Does the Department never meet the taxing master to discuss the taxation issues of legal costs?

Mr Allison: We met him last week.

Miss Hargey: He will not meet us.

Mr McGlone: That is another question. If that is true, Deirdre, then that is —. I am only a novice in the Committee.

Mr J Bradley: There is a crucial difference in that specific respect, which is that if this Committee wants to say, "Why is the rate at which solicitors are paid for doing this High Court work set at £155?", if the Department has set the rate you can call us here and ask us that question. If you want to ask the taxing master why the rate is set at that level, they are under no compulsion to answer you, so there is a breakdown in accountability to the Assembly for public expenditure there.

Mr McGlone: Are you saying that the taxing master is not accountable to the Assembly and will not make themselves available to the Assembly?

Mr J Bradley: Whether they make themselves available or not — the Committee will know better than me whether that is generally the case — they are not required to.

Mr McGlone: They are not required to. What mechanism are you suggesting, then?

Mr Allison: The very simple construct for us is —. I will compare both. At the moment, the taxing master has the power, and has exercised that power, to set an hourly rate for solicitors at £155 an hour. That was announced in April 2025. There were then further changes to interlocutory fees. We were involved in and made submissions in terms of the impact that that would have on the public purse, which amounted to something in the region of £20,000 a day, by a conservative estimate. We do not know what the master took or did not take into consideration. That was a matter for the master to do that, because it is an independent role. We cannot explain the rate of £155. We have some thinking behind it, and we know how much it works out at. We are not aware whether, in conducting that exercise, the taxing master considered statutory impact assessments — the impact on citizens — of that rate, because it does not just have an impact on solicitors. As John said, we are not able to explain that to the PAC, nor can we explain it in our budget. We know the impact, but we have no say in that.

The taxing master's role after that is to assess the bills. All that we are doing in the construct is saying that we will work with the profession to set an appropriate hourly rate, with a reasonable profit margin, that will apply to the vast majority of cases. We will work with the profession to apply a rate for counsel — a number of counsel rates already exist at government levels — which will be the base rate that counsel apply to their bills. The bills still go to the taxing master, who has expertise in looking at whether those bills are excessive or otherwise in terms of the hours claimed. I would not know whether a bill should be for 50 hours or 100 hours. We would have to create a whole new industry around that. We are doing what we are obliged to do for every other legal aid remuneration, which is to set fees that are based on criteria that are set out in law and which are accountable to the Committee, the Assembly, the Minister and all the accountability mechanisms. That is what we see as moving back into the Department.

Mr McGlone: I have one question, just to round this off. Did you ask the taxing master the questions that you have just raised there?

Mr Allison: I had a really constructive meeting with the taxing master Friday week ago. Chris met him prior to that some time before. The taxing master has an independent role and does not endorse one thing or another, but I took it that he understands the rationale. I would not dare to presume that the taxing master says that it is a good idea or a bad idea. He will not stray into that territory.

Mr McGlone: OK, thank you for that. Just to piggyback on that, albeit it may be the case that the taxing master did not indicate an intention to attend the Committee, it would be useful to hear from him, if we could, if he was forthcoming with issues and opinions around it. Perhaps we can invite him — I presume it is a him — to the Committee, if that would be helpful.

The Chairperson (Mr Frew): OK. That is in the hands of the Committee, if we are happy enough to do that. We can ask him to provide evidence on the amendment to the Justice Bill.

The Committee Clerk: The taxing master, through the Lady Chief Justice's office, has already provided some information on what is in the Bill. They made it clear that they do not particularly want to comment on policy as such, in that way.

The Chairperson (Mr Frew): They may want to declare an interest, considering that the amendment specifically targets actions that the taxing master takes on.

Mr McGlone: I would not presume to put words in his mouth, but it would be helpful to hear from him.

The Chairperson (Mr Frew): We could certainly scope it out and request that, so that we might see what the parameters might be.

Ms Egan: Thank you for coming in today. One of my concerns about legal aid is the experience of domestic abuse victims, particularly in how they access legal aid and how the waiver is used. Organisations such as Women's Aid have reported that the waiver is underused. I am very interested in what you said in your opening statement about the weaponisation of legal aid. Will you speak to that a bit more, please?

Mr Allison: I will pass to John, who leads on the structural reform of financial eligibility rules and the means test, as well as how those link to the support that we provide for domestic abuse victims and other vulnerable groups and the carve outs and safeguards that we are trying to inject. After John gives you a better explanation on that, I will explain what we are doing through our engagement with Women's Aid, the Men's Advisory Project Northern Ireland (MAPNI) and so forth to try to develop those things, because they need to be carefully worked through. The involvement of those organisations is pivotal.

Mr J Bradley: Thank you for the question. The Committee will get much more detailed information on financial eligibility and merits testing in the written briefing that will come next week. Essentially, we have picked up three issues in respect of the current legal aid provision that continue to cause significant issues for victims of domestic abuse. You touched on all of them in your questions.

The first is the effectiveness of the current waiver around non-molestation orders and article 8 proceedings. The uptake of that is not just low; it is vanishingly low. Frustratingly, it has proven to be very ineffective in getting people access to what they need. For that reason, in the paper that you will get next week on financial eligibility, you will see specific measures to radically simplify the tests that apply to domestic abuse victims seeking to access a range of legal services.

I turn to the particular point that you touched on about the weaponisation of legal aid to perpetuate abuse. We continue to see, especially, repeated applications by abusive ex-partners against their former partners and victims for contact with children. The paper therefore includes specific new measures for incorporation into the legal aid merits test to prevent vexatious applications and repeated applications for contact with children, with the specific aim of addressing that issue. You will see the full details of that when the briefing paper comes for your consideration next week.

Mr Allison: I am conscious that John has a heavy cold, as you can tell.

Mr J Bradley: I am running out of oxygen as I answer questions.

Ms Egan: I had one last week.

Mr J Bradley: If you want to know more or have specific questions, I can say more, but it does pain me slightly.

Mr Allison: I will jump in to save his voice.

I mentioned wider support, because for us, when it comes to structural reform, the first thing is to try to get immediate access for people who are the most vulnerable. I have lost count of the number of times that I have heard solicitors and citizens say that the process of applying for legal aid is cumbersome, complex, off-putting and challenging. Hopefully, next week, you will see the aspiration and ambition in those reform proposals to cut through that and make it simple. We have to have some sort of financial eligibility test to start off. We are not so much looking at waiving those for domestic abuse victims and other vulnerable groups; rather, we are looking at having those people going straight to the merits test if they have evidence that they are the victim of domestic abuse, so that they do not have to worry about asking someone for bank account information or this, that and the other. Instead, they will go straight in to that test because those things are challenging.

I had a very helpful discussion the other week with the Commissioner Designate for Victims of Crime, and we are taking up the suggestion of setting up a working group with Women's Aid, the Men's Advisory Project and solicitors who are really dedicated and passionate in that space. Academics at Queen's University will be involved because they did a report for us previously. That means that we can develop an even more enhanced wrap-around model. It will look not just at weaponisation but at whether we can use our money more effectively to get someone in that space who needs help and goes to one of those groups or their solicitor a better wrap-around service at that point of need and cut through some of the bureaucracy that, we accept, generally exists.
You will, hopefully, see that next week. John and I will be happy to come back and talk about that at length, because it is probably the more progressive side of legal aid reform and is much needed in that space.

Ms Egan: Thank you for that. Engagement with organisations such as Women's Aid, the Men's Advisory Project and others that support victims and survivors is important when it comes to this. The Committee has heard — as have I, as an MLA — reports from people, about how they find that process, especially through the family courts, to be traumatising. Can you speak to any further planned reforms to make that as victim centred as possible?

Mr Allison: It is challenging for me to give detail on that at the moment, because there are proposals in the programme to look at reform of the way in which we work with other areas in the judiciary and so forth, and there is work being done on the reform of the family courts. We are probably more in the space of trying to enable that, because legal aid will come in to support individuals. Our aspiration, the whole way through this, is to keep it simple. I am a fairly simple individual at the best of times. The financial eligibility tests are so complex and overlapping that I could not explain them to a man or woman on Royal Avenue, and I have been in post for four years. Once somebody is in the funnel, getting into the system, that is the legal aid bit done, but what are we doing to support those individuals the whole way through the system? We will look to work with the profession to look at the quality standards and redress mechanisms, building on their codes of conduct and working with the profession to say, "Can we do more on CBT training for trauma-informed approaches?" so that people who are in the system get individuals who understand what is happening with them.

That was a broad-sweep answer and probably not as precise as you were hoping for. The best way to describe it, at this point, is probably as a work in progress.

Mr J Bradley: You are right: we have heard that people's experience of the family courts is often very negative and that it can exacerbate the trauma that they have experienced. At present, when we offer legal aid, we offer a lawyer to help people with their problems. When someone is a victim of domestic abuse, they will approach someone — a GP, Women's Aid or someone else in their community. We would prefer a system whereby the service that they require would move towards the person who is seeking help at the point that they make contact. As part of that, we envisage a new form of legal aid certificate that says, first, "We accept that you are a victim of domestic abuse; we believe you", — and secondly, "As a victim of domestic abuse, a complainant in criminal proceedings, a separating partner or a parent, there is a clear set of legal services to which you require access, and we can grant that access right away". It should be granted in such a way that it is embedded in the range of services that are available to that person, including alternative dispute resolution, mediation and so forth. People should not automatically be directed into court processes when that might not be the most helpful route for them.

Our aspiration is for the help that is required and that best fits the person's needs to be available at the point of need. The only way to deliver that is in partnership with community and voluntary sector organisations and public-sector service providers. Frankly, everyone who provides support services in communities needs to be in a partnership so that the two strands are together. Our aspiration is to have a simpler and faster legal aid application process that gives people access to what they need and that is integrated with the other support services in communities. The plans that the Committee will see next week are the legal aid part of that plan.

Ms Egan: Thank you. I appreciate your comprehensive responses. The issues around family courts go a lot wider than just access to legal aid.

Mr Allison: Yes, very much so.

Ms Egan: Hopefully, we can have you back to talk about that.

Mr J Bradley: Definitely. We are more than happy to come back.

Ms Ferguson: It is no surprise about the taxation. You have been in before, Chris, and I am just looking for clarity because it is difficult to understand when you do not know the process of the taxing master, on the one hand, and, on the other hand, what you are trying to achieve, which is openness and transparency.

How will the Department go about setting that hourly rate? Will the taxing master's role be just to consider how many hours are claimed? Will that reduce his current responsibilities? Will that evolve? Will you give us some clarity on that?

It will come through an amendment in the Justice Bill, but it is difficult to grasp the reasons for doing it in the first place. Why try and fix something that is perceived to be working and not exactly knowing, unless you are an accounting officer in the Department, how it is all broken down?

For the sake of clarity, where are you with regard to setting the rate? How will it be set? What will the impact be on the role and duties of the taxing master? Will his duties be reduced? Will he have less to do? Will he have fewer duties? Will his role change? Will you give us some clarity around that?

Mr Allison: I will start, and then Chris can go into the detail because he is across it. Setting the rate is probably one of the converging points about all the legal aid in respect of what we have been doing with Judge Burgess. In his report, Judge Burgess said that there are two building blocks to setting fee levels: first, what people are being asked to do and how long that will take; and, secondly, how much you are paying for that time.

The working group has done a lot of work on looking at hourly rates. Solicitors presented a report to the taxing master on what would be an appropriate rate, so quite a bit of work has already been done. With regard to taking forward the hourly rate, we are planning to look at the existing information that we have that has informed some of the discussions to date. Reports have been presented by the Law Society on what would be an appropriate rate for the cost of production and the profit margins attached to that. We also commissioned a separate report from the Strategic Investment Board (SIB) adviser. We got that in July to look at some of that information to see what methodology we should be using. We want to get a really good grounding in that.

We are probably closer to moving things forward with the solicitors because they operate on a timing-line bill with an hourly rate, and they break their bills down into minutes. The brief free does not lend itself to that at this point. In the new year, we plan to engage with the Law Society and the various associations. We met them a couple of weeks ago, and the Law Society was kind enough to organise for a number of the practitioners to come in, and we gave them an update and a high-level overview. We are committed to working with them to develop an hourly rate with a reasonable profit margin. We will probably not have a difficulty on the cost of production element. We will probably have quite a few healthy debates about what a reasonable profit margin looks like. However, we will break out our information and analysis to the Law Society representatives, and we will get involved in a process of where the lines of disconnect are and how we can join those together. We will make proposals and will go into a later discussion.

On counsel fees, there are government legal services rates anyway at the moment, so many members of the bar apply to become members of government panels. There are A panels, B panels and C panels. There is a set, fixed hourly rate that was recently reviewed by the Department of Finance in April. That is a good starter for us to know what government pays counsel. I will give you an example that I have used before. If you go into a judicial review against the Department, the Department will pay for counsel out of government panel rates. The applicant's counsel will provide a brief fee to the taxing master. They are apples and pears in respect of what is being presented, but our simple view is that a good starting point is that we are paying government lawyers to take a case with the same number of files, the same number of papers and the same length of time in court. It is not too bad a starting point for discussing with the bar and the associations whether that applies.

We have already agreed in principle, in the criminal space, that the government legal rate should be used as the basis for revaluation of any remuneration levels in the criminal legal aid space. Therefore, I think that we have made some inroads.

On the second point on the taxing master —. I will pause because that is a lot of information.

Ms Ferguson: It is a very complex, and to be honest, it is still not clear where you are on the issue and how it is going to work out. Why push forward on legislation when we do not know where we are and where it is going to end up?
If it stated in black and white, "This is the rate. This is what's been agreed. This is the legislation. We're going to do secondary legislation to implement it", that would be fine.

Mr Allison: Sorry. I should have covered that. The amendment that we will table to the Justice Bill is an enabling amendment to allow us to create secondary legislation to set the rates. The amendment, which, hopefully, you will consider in the new year, is just to allow that enabling provision to come in. In parallel with that, we will be working to develop the secondary legislation, so that it says, "This is the rate that we're striking" and explains how we got to that point.

Through the amendment to the Justice Bill, we are looking at getting the powers to set rates through subordinate legislation, but that will be subject to all of the scrutiny, public consultation and all of the safeguards that the Assembly and the procedures bring with them.

It is probably very early to talk to you about how we are going to go about setting the rates. We know what our starting point is. We will work with the Law Society and the Bar to develop an engagement process on where we end up and how we go through that.

Ms Ferguson: It is going to be a long, drawn-out process. Are you talking about years?

Mr Barry: We are currently aiming for the end of the mandate, with the primary amendment going through in the current Justice Bill. As Steven said, the secondary legislation will be produced in parallel with that. The remuneration order allows us to set rates. The enabling provision is with the Justice Bill team. Subject to the views of the Committee, it will engage with the Office of the Legislative Counsel (OLC) to take on board draft instructions to look at that amendment. That amendment is saying that the master, in his assessment, will apply the rates that we set in the remuneration order. We can set rates in legislation; it is just that extra bit of assurance that the master will then have to apply those to a legally aided case. The secondary legislation will be done in parallel, with the aim of the end of the mandate. The operational side of that will all be worked in as well.

As for the impact on the taxing master, we look at what is happening now and what we would like to achieve. Solicitors charge for their time in line. That is absolutely correct. We have lots of detail on that. The BDO report that was done on behalf of the Law Society that informed the new hourly rate did not look at profit. That is what solicitors say is the cost of production; if they charged that, they would not make anything. The profit element comes from the uplift, which can be anything; it ranges from 50% up to 200% or 300%. We are asking what a reasonable profit is, in terms of the public purse. We want to introduce an hourly rate and an element of a percentage uplift to be applied to the vast majority of solicitor bills that are paid through the legal aid fund, so that we are not in a situation in which 200% uplifts are being sought from the public purse. As Steven said, the conversation will be about what the reasonable element of it is.

In terms of counsel —

Ms Ferguson: Just on that reasonable element, you are trying to do that across the board, but what might be reasonable for a large company with loads of barristers will not be the same for single, smaller companies. The profit margins will be different.

Mr Barry: Yes.

Ms Ferguson: You are trying to standardise it across the board.

Mr Barry: Technically, that is done anyway because, even for the rate that has been set for now, a survey of solicitor firms was done. Some will do better out of it, and some may not. Unfortunately, we have to talk in averages. We cannot be distinct to every firm. It is about the reasonableness of it.

As of now, counsel submits a brief fee. We have no further breakdown of that. We are proposing an hourly rate, where you set out what you did and how long it took, which comprises the work that you did on a case. As Steven said, that is done on the government side; there is a government hourly rate. The overarching thing for both is that we have that data on the LAMS, and that it is accessible. The taxing master's office is a paper-based office. When we first came to taxation reform, my team went through lever arch files to extract information. We want to get to a position where information about the time is available, such as for judicial reviews or an ongoing Children Order case. We can then get population-level data, which will lead to further reform in the future, so we can start to talk about standard fees. There have been standard fees in criminal legal aid for over 20 years, and we have not made the same inroads on the civil side. It is about getting the data and making it accessible.

Mr Allison: I am conscious that understanding the nuances of taxation can be almost impenetrable. If it would assist the Committee in advance of its consideration of the amendment, we can provide a paper that breaks down the component elements, provides examples of how they currently apply and contrasts that with what we might have in the future, to give you a before-and-after picture.

The Chairperson (Mr Frew): That would be very helpful. We are running out of time, though. Do you have a date for the launch of the amendment?

Mr Barry: We will go to OLC with the drafting instructions at the end of the month.

The Chairperson (Mr Frew): Have there been no instructions yet?

Mr Barry: The drafting instructions are with the Bill team, and we are in a queue that is waiting to go to OLC. I have been in touch with the Bill team, and they advised that it will be the end of the month. The Department is considering a couple of amendments to the Justice Bill, which will go to OLC at the end of the month. As soon as we get an indication of what the amendment will look like, we will provide it to the Committee.

The Chairperson (Mr Frew): No problem.

Mr Kingston: The paper states that the new approach aims to increase transparency and accountability for public expenditure. If I heard you correctly, you said that solicitors provide a time in line justification, but counsel —. Do you mean barristers?

Mr Allison: Barristers.

Mr Kingston: The current practice is for Barristers not to do that. Given that there needs to be a justification for claims to the public purse, will that change?

Mr Allison: One of the changes we are introducing is that barristers will be expected to provide time in line bills, based on the hourly rate that has been set, in the same way as solicitors do. The taxing master can then consider the bills, and we will be able to see the exact breakdown of the hours, what the taxing master has allowed for, and, on foot of his order, we will pay. We will bring both sides of the profession into the same space.

Mr Kingston: You mentioned the old rate and the new rate. Can we get a comparison to the rates paid in other jurisdictions?

Mr Allison: We will do that. Chris has quite a bit of detail on the taxation space, but we will present that in the update.

Mr Kingston: It will give us an idea if the rates are in keeping.

Mr Allison: I am more than happy to do that.

Mr Kingston: this may be too general a question, but do you have any sense of the percentage of cases that get legal aid?

Mr Allison: It is easier to talk about the spend on legal aid each year. Spend this year is anticipated to be £120 million for the whole legal aid budget. Last year, just short of £40 million was ordered through taxation, and a significant portion of the legal aid fund is ordered through taxation. So, a third of the legal aid spend is ordered through taxation by the taxing master for rates that we do not set for brief fees. It is no criticism of the taxing master's role, and the PAC's report recognised that the taxing master, at that time and since, provides a valuable role in adjusting bills.

Mr Kingston: Thank you.

The Chairperson (Mr Frew): No other members have indicated, and it just remains for me to thank Steven, Chris and John for their time. Thank you for your time, and the way you have answered the questions. John, I hope you make a speedy recovery.

Mr J Bradley: I have survived.

Mr Allison: Thank you for your views on the papers. Thank you.