Official Report: Minutes of Evidence

The Chairperson (Mr Frew): The witnesses providing evidence to the Committee today are Denise Kiley KC, the vice chair of the Bar Council of Northern Ireland; Laura Vance from the Family Bar Association; and David Mulholland, the Bar Council's chief executive. You are welcome. You are no strangers to the Committee, and I am sure that you dip into our meetings religiously every week. Without further ado, please make your opening statement.

Ms Denise Kiley (Bar Council of Northern Ireland): Chair and members, thank you. First, I extend our thanks to the Committee for taking our oral evidence this afternoon. I am the vice chair of the Bar Council. I am joined by Laura Vance, who is the vice chair of the Family Bar Association, and David Mulholland, who is the chief executive of the Bar Council.

We submitted a detailed briefing paper in advance, so thank you for the time that you have taken to consider it. This afternoon, we intend to develop some key elements of that paper, and we are happy to answer any questions that arise.

As the Chair said, this is our second time providing evidence on the Justice Bill to the Committee. Members may recall that I was here with David and the chair of the Bar Council on 6 February 2025 to discuss clause 28 of the Justice Bill. You will know that proposed new clause 27A is designed to replace clause 28, which would have removed the role of the taxing master from the assessment of certain legally aided costs.

The practical effect of new clause 27A is that, when the taxing master is determining costs, he must now do so in line with the relevant fees, rates and arrangements set out in an as yet undrafted remuneration order dictated by the Department of Justice. Although new clause 27A will retain a role for the taxing master, it will place significant limits on that role.

You will recall that the Bar Council previously expressed several concerns about clause 28. Although we are encouraged that clause 28 will not now proceed, we should state from the outset that the introduction of new clause 27A as an amendment to the Justice Bill does not negate all our concerns. We continue to have significant concerns about new clause 27A, particularly in the wider context of the programme of reform of taxation that is now being advanced by the Department of Justice. That context is important, because new clause 27A is not being presented in isolation; it runs alongside the enabling access to justice programme. The Department, however, has not yet published the post-consultation report on the enabling access to justice delivery plan, nor has it issued an updated delivery plan for the wider reform programme. In the absence of those documents, it is not possible for us or for the Committee to assess properly how the current proposals interact with other strands of proposed reform. That is particularly concerning, given the Department's recent decision to open what has been described as an engagement process that proposes significant and some radical reforms to the eligibility, scope and operation of legally aided work in civil and family law matters. I will return to those reforms shortly.

That evolving and piecemeal approach has resulted in a lack of coherence across the reform agenda, making it difficult to assess the cumulative impact of the proposals, including costs, savings and unintended consequences. It has also led to uncertainty over the precise policy objective. Initially, clause 28 was introduced in the Justice Bill, while separate reform was proposed through the enabling access to justice programme. It was proposed that that separate reform be undertaken by way of a phased approach. The Department then departed from that position, suggesting that it would now approach taxation in a holistic way. The Department's approach to reform of that important area has been marked by a number of such changes in direction. That, unfortunately, has created uncertainty and has limited our ability and that of other stakeholders to engage with and respond to a stable and clearly defined proposal.

There are two questions that should be asked. First, why is taxation reform being pursued by the Department? Secondly, what is the evidence base for reform in that area? Those are important foundational questions to which there ought to be clear and empirical answers.

Regrettably, we think that the answers remain unclear.

The Department has frequently said that the motivation behind its taxation reform is to improve the transparency and accountability of legal aid expenditure, originally contending that the taxing master was independent and not accountable to the departmental accounting officer. That was the rationale that was offered for clause 28. Later, the Department's evidence to the Committee indicated that its position had shifted and that, rather than removing the taxing master's power to order taxation of legal aid costs, its focus had moved to restricting the taxing master's ability to set interlocutory fees and hourly rates. The rationale offered for that was that the 2025 increase to solicitors' hourly rates and interlocutory fees would create what departmental officials described as an additional and unforeseen budgetary pressure of £7 million on the Department's budget. The Department has suggested that the increase to the solicitor hourly rate and interlocutory fees was not foreseeable and that the process did not allow the Department to make contingency in its budget for the possibility that fees may be increased.

The Committee has already heard evidence from Master Moore, the taxing master, and from the Lady Chief Justice on that increase. It has heard about the robust, evidence-based, inclusive process that was applied to it. What, in fact, happened was that the Department of Justice was involved in no fewer than seven meetings of a working group chaired by a High Court judge that examined the solicitor hourly rate and interlocutory fees across 2024 and 2025. The Department therefore had the ability to participate in the working group and to make representations, just like any other stakeholder. As part of that process, the Department's paper from January 2025 that it submitted to the working group explicitly acknowledged that it attended the working group because:

That same paper acknowledged that the Department had received copies of the report on the solicitor hourly rate as well as on the revised pleading and interlocutory fees from the Bar as far back as 27 November 2024. The Department stated at the time that the purpose of its paper was to provide the working group with an assessment of the potential impact of proposed uplifts on the legal aid fund so that it could be informed of the potential repercussions of any decision to uplift fees and rates. The Department was therefore not only aware of the possibility of an increase but actively assessed and presented the potential financial consequences of it before the taxing master's decision on the working group's recommendations was made, so it is difficult to accept the Department's later characterisation of the increase as unforeseen, considering its prior participation and contribution to the working group process.

The Committee will also recall that, in her evidence to the Committee in January 2026, the Lady Chief Justice confirmed that the solicitor hourly rate and interlocutory fees had not been increased in 11 years. The Bar's position is that it would have been reasonable for the Department to anticipate and plan for an increase, given such a period of stagnation. We say that, if the purpose of clause 27A is budgetary control, the Department must explain how that is to be achieved in a system that is demand-led. Even if the Department is to fix an hourly rate, the time element of the calculation will remain variable if it is to be independently and properly assessed by the taxing master. A time-based system may just alter the source of the unpredictability rather than remove it.

A further and very important point that we are due to consider is judicial independence. Through clause 27A, the Department seeks the power to enact remuneration orders, essentially to set hourly rates for legal practitioners and to remove that power from the scope of the taxing master. As you know, the taxing master is an independent judicial officeholder who can determine the hourly rate for solicitors and interlocutory fees for barristers. In taxing a bill of costs, the taxing master is essentially independently reviewing and settling the amount to be paid for legal work. As the taxing master and the Lady Chief Justice confirmed to the Committee when they gave evidence in January, the taxing master already has a duty to the legal aid fund when carrying out that assessment. When the taxing master gave evidence, he said:

There is therefore already a protection in the current system. Transferring that function of assessment from the judiciary to the Department would represent a worrying encroachment on judicial independence. It would essentially place the determination of legal remuneration under direct departmental control. The significance of that cannot be overstated. To take that action would set a dangerous precedent, whereby the Assembly would give consent to the Department to curb judicial independence because a judicial officeholder makes a decision that the Department does not agree with. We made that point previously about clause 28, and it remains valid for proposed clause 27A.

On clause 27A specifically, we urge you to ask exactly what MLAs are being asked to vote in support of. The Department has not provided a satisfactory answer to that question. MLAs are effectively being asked to vote blind and to provide a legislative blank cheque for the Department. Clause 27A as drafted provides no detail on the substance of the future remuneration orders. It says nothing about the framework for determining remuneration or about the factors that will be considered. The Committee will, no doubt, be familiar with the concept of skeleton legislation — we referred to it in our briefing paper — in which key elements of policy are deferred to secondary legislation. The Delegated Powers and Regulatory Reform Committee has made it clear that, because skeleton legislation is at odds with the fundamental principles of parliamentary democracy, it should be used only in the most exceptional circumstances. We cannot understand how any exceptional circumstances could exist in that regard.

Our concerns in that area are compounded by the timing of the amendment. We are aware that the Committee received sight of new clause 27A only on 3 March, which was around three weeks prior to the completion of the Justice Bill's Committee Stage. That has seriously limited the opportunity for meaningful scrutiny, stakeholder engagement and detailed consideration of the new clause's implications. You will not be surprised to hear that the Bar Council advocates evidence-based policymaking. Reform of taxation has the potential to interfere with the ability of vulnerable people to access justice. Sensitive, complex family cases or valid and urgent challenges to government policy can be involved. Changes must therefore be based on a thorough review of proven, contextualised and empirical data. In the past two years, in the context of fees relating to criminal legal aid, the Minister of Justice has repeatedly insisted that change must be supported by verifiable evidence and that that evidence must be data-driven. That same approach is not evident in the Department's proposals for taxation reform. The evidence base that underpins the proposed taxation reform lacks rigour. Progressing reform on that basis runs contrary not only to the principle of evidence-based policymaking but to the Department's stated policy position on criminal legal aid reform.

More broadly, the reforms are not based on any official statistics that can be analysed or broken down so that issues can be more clearly identified and appropriately addressed. It is essential that the proposed reforms be subject to rigorous due diligence, with all the relevant context and potential impacts taken into account. That, regrettably, has not occurred. There has been no effective review undertaken to provide the evidential foundation for the wider reform of civil and family fees for publicly funded work, including taxation reform, despite the Department's commitment in its post-consultation report, which it published in June 2025, to establish a civil legal aid working group to consider remuneration.

As the Committee knows, the Department established a fundamental review of criminal legal aid led by His Honour Judge Burgess, but there has not been an equivalent exercise in the civil and family context.

The evidence base for reform has not been established. The issues that the Department seeks to address — transparency, proportionality and value for money — have not been properly examined in their context. It is difficult for us to conclude that sufficient groundwork has been undertaken to support the proposed changes. Related to all of that, it is also important to understand that the Department's proposed taxation reform will apply to family and civil legally aided work. The Department is, it seems, attempting to apply a one-size-fits-all approach to different areas of law. That is too simplistic. It is uninformed and a blunt approach to take.

Back in 2025, the Minister made a decision to apply the 16% fee uplift, which, as you know, Judge Burgess had recommended in the criminal context, to civil and family law also. That decision was said to have been motivated by a desire to achieve equality among different practice areas. In doing so, the Minister marked out the family Bar as being dominated by female practitioners, while the criminal Bar was described as being dominated by males. Although the intention to approach matters equitably is welcome and laudable, it is hard to reconcile those actions with the fact that there has been no equivalent independent review of family legal aid in Northern Ireland.

My colleagues in the Family Bar Association, including Laura, have made repeated calls for a fundamental review of the operation of publicly funded legal services in family matters. The reason for that is that a fundamental review would present an opportunity to identify and address the systemic issues across the provision of publicly funded legal services and to target reform measures in a strategic and evidence-based way. Unfortunately, that has not happened, and we have instead proposed new clause 27A, which is the product of a disjointed programme of taxation reform that has been foisted on family and civil publicly funded services without that robust evidence base, as well as having been done on the basis of shifting policy objectives, which I have already described.

The Bar is also concerned that extending fixed fee structures to other areas of legal aid risks replicating the undesirable situation in which services lurch from crisis to crisis. We have seen that happen in criminal law. There is a risk that the Department's approach will simply extend the access to justice crisis to the civil and family fronts. The Bar Council and the Committee cannot ignore the unfortunate reality that the Department has a poor record of reviewing fees when it is required to do so, even when that requirement is a statutory one. The purpose of the requirement to review fees is to ensure that they properly reflect the nature, complexity and value of the work that is undertaken. We have spoken to the Committee previously about the reviews. For example, family care centre fees are dictated by the Civil Legal Services (Remuneration) Order (Northern Ireland) 2015. The Department has not fulfilled its statutory obligation to review those fees since 2015.

Members are aware of the Crown Court fee levels that were due to be reviewed in 2018, 2021 and 2022 in accordance with statutory obligations, but the reviews were not completed. Those examples indicate a pattern of delay and a failure to fulfil fee review obligations across different areas of legal aid remuneration. It is often said that the most accurate predictor of future conduct is past conduct: if that is the case, the Department has proven itself incapable of fulfilling its obligations in existing areas of responsibility when it comes to reviewing rates of remuneration. That being the case, the very last thing that the Assembly wants to be doing is giving it more responsibilities. Not only has the failure to review fees been a missed opportunity to ensure that they properly reflect the nature and complexity of work but it has eroded trust and confidence among the barrister profession. It has reduced the viability of legal aid work and has thereby occasioned risks to access to justice about which we have previously spoken at length. We wish to avoid extending that situation to the wider justice system, as, I am sure, does the Committee. Clause 27A would provide the Department with expansive powers to set hourly rates at the expense of the independent checks and balances that are in place at present to ensure that the rates represent fair remuneration and are looked at regularly.

At this point, I will address the use of the brief fee, particularly as it relates to family fees and civil law matters. The effect of clause 27A would be that all fee claims would be required to be assessed individually and to be paid on an hourly rate basis. The Department has failed to explain whether alternative systems to hourly fees have been considered, which may include fixed fee models, such as the Comerton scale, or modifications to the current brief fee model, which has been in existence for some time. Again, we have provided some detail to the Committee about the brief fee in the past. As you know, the brief fee reflects a combination of risk and fair reward for a barrister. By using individualised brief fees, a barrister with greater experience and skill who may be able to prepare a case in fewer hours would not be paid less than a barrister with less experience whose skill might require taking longer to prepare but who, under hourly rates, would ultimately claim more hours.

We refer in our briefing paper to research in England and Wales that found that 54% of UK firms expect to increase their use of fixed fees and are moving away from traditional hourly rate billing. The use of a brief fee also incentivises competition. It creates choice for instructing solicitors, who can achieve efficient outcomes by selecting from a range of suitably experienced barristers. The hourly rate model therefore may realise the unintended consequence of failing to reward experience and expertise, and that would be counter-intuitive to the Department's efforts to speed up justice.

Over many years, the Department has advised the profession that certain aspects of legal aid must operate on a swings-and-roundabouts basis. A brief fee, which entails some risk and incentive for the barrister, aligns with that philosophy. Comparative experience also shows that brief fees remain a recognised and retained model of barrister remuneration. In England and Wales, brief fees continue to be used, with the approval of the Bar Standards Board, which requires barristers to explain in advance whether they charge by fixed fee, hourly rate or other arrangement. Similarly — again, we have provided detail on this in our briefing paper — following its 2020 evidence-based advocate fee review, the Crown Prosecution Service in England retained and increased a range of brief fees for trial and guilty plea cases. That evidence demonstrates that brief fees can support predictability, efficiency and administrative simplicity and should not be displaced without proper review.

We urge the Committee to look beyond the headlines and the sometimes oversimplified statistics about the costs of legal aid. Cases have become more complex. New and important legislation has been implemented. Social and health issues are rising among the clients whom we represent. The Bar Council is supportive of reform, but it must be the right reform at the right time, and reform must always be based on robust evidence and a properly conducted consultation process.

It appears, however, that, unfortunately, civil and family law matters can be and have been relegated in the policy discourse. Those are matters that can involve constituents and individuals being at risk of losing custody of their children, their home or their reputation as a result of proceedings, so there are high stakes and important issues involved. The consequences of reform in those areas are stark. I have mentioned the engagement process that the Department launched earlier this month. It proposes curbing access to justice through the removal of legal aid from the first stage, which, you may know, is referred to as the "leave stage", of judicial review proceedings. That should be of great concern to anyone who is concerned with the ability of citizens to exercise their legal rights, challenge public authorities and ensure that they make lawful and accountable decisions. We will continue to engage with the Department about its proposals, but you can see that this is not just about fees, as the reforms will create real issues about access to justice.

Clause 27A and wider access to justice reforms are not procedural matters. They do not have little consequence for the Committee or the Assembly. They do not just affect lawyers; they invoke real issues of access to justice for us all and for your constituents, and they call for serious reflection on judicial independence and the importance of that in a democratic society.

We urge you to consider all those things. As I say, we are grateful that you have given us the opportunity to come here today. I have covered a lot of ground here, and I know that we covered a lot of ground in our briefing paper. Thank you for staying with me. If you have any questions for me, Laura or David, we are more than happy to try to answer those.

The Chairperson (Mr Frew): Thank you, Denise. We will get straight into it.

Mr McGlone: Thank you for your presentation. I have two or three things that I will start off with. First, you referred to unintended consequences: can you be specific about what those may be? Obviously you are the legal people, and you will have handled such things.

The other thing you asked was why taxation reform was being pursued and what the evidence for it was. There is reference in your document to the Comerton scale and fixed fees: it would be helpful if you could expand on that and say what the alternatives are, if there are any.

You also stated that cases have become more complex: I am intrigued by that. Have they become more complex because they are being spun out a bit more? Can you expand on what you mean by that?

Ms Kiley: I will start with that one. All cases across all areas of law have become more complex. It is not just about the time that they take; it is about the issues that arise in those cases and the profile of our clients. A number of the clients whom we now encounter have mental health issues and addiction issues. That is becoming more prevalent, and it adds complexity to cases.

Mr McGlone: Can you explain for me, because I am not a legal person, how that adds complexity?

Ms Kiley: It adds complexity for barristers when we meet clients who have those potential difficulties in trying to ensure that we explain the issues correctly and get the right experts involved, and we must ensure that those people can properly take part in court cases and the system. It is an issue that is particularly prevalent in the areas of family law and criminal law. Laura may want to touch a little on it from a family law perspective.

It is not just that. There are also complexities arising from the technological aspects of cases. We have spoken about those before when we have addressed the Committee on the issue of criminal fees in particular and the complexities that arise in those cases. There are now technological complexities such as mobile telephone data. Those things did not exist before, and the need to analyse that appears in a lot of criminal cases now. Those things did not exist when the fees were initially set for criminal cases. It is technological advancements but also the complexities that we encounter in the population.

As for your other question about the unintended consequences of taxation reform, one of the things that we have spoken to the Committee about before in the context of other reforms such as the criminal legal aid reforms is a two-tier justice system, and that equally applies here. That is what we are getting at when we talk about unintended consequences. The work will be unattractive to practitioners if it is not properly remunerated. At the minute, what you have in front of you is a proposal to allow the Department to impose remuneration orders without any detail on what those will entail. We do not know — it is not clear — what the rationale behind that is, but it has been said that part of the rationale is budgetary management. If it is intended simply to provide a reduction in the fees that the Department pays, the work will become less attractive to barristers. There are all sorts of issues with hourly rate that we may come on to discuss, but it does not properly remunerate barristers for large areas of law. It is not as simple as setting down a rate and requiring a barrister to vouch for the work that they do in a case. We may come on to hourly rates separately.

Mr McGlone: I was going to come on to it anyway. If it ain't broke, why fix it, but you have already said that there may be reasons to review it and to look at a system that has been in place for quite a while. Nobody is objecting to any of that, as long as it works better. Your briefing paper — thank you for that — refers to how the system in England and Wales works. There are two elements to it. One is, obviously, the fees that we are talking about, but second is the efficiency of the system. How efficient is the system there as opposed to here? Clearly, you do not want to be introducing a mechanism here that will make things worse. How efficient is the system over there?

Mr David Mulholland (Bar Council of Northern Ireland): There definitely are backlogs and inefficiencies across all systems in all jurisdictions. Linking it to your question about unintended consequences, I suppose it seems strange that the system might move to something that is based solely on a time-based system, because, as Denise said in her opening comments, you then lose the ability to reward and incentivise speed, recognise experience and encourage early resolution, because you are setting up a system that measures and rewards the time taken rather than the outcome and the speed and quality of that outcome.

It would be fair to say that there are different systems in different jurisdictions. Some are time-based, and some are not, but, with this one, as we have said a few times, when it has not been reviewed, how do you know that you have found the right solution? Therefore, the prospects, to your opening question, of unintended consequences have to be high in a system where you do not know whether you have diagnosed the problem. It may be a poor analogy, but it is like looking at Stormont and saying, "Overall, Stormont is overspending, therefore each Department needs to be cut by the same percentage". That does not take account of need, the underlying drivers, the implications of that, the impact and who would be affected by that. A proper approach would be that, before you propose a reform, you understand the problem.

Mr McGlone: One more thing, with your forbearance, Chair.

David, you brought me on to it and reminded me of it. Part of the argument would be to be devil's advocate. You mentioned experience, higher levels and the demand — you are the practitioners: you know — that there is for more senior and more experienced counsel. How do junior and less experienced counsel get the experience that is required and the remuneration for that?

Ms Laura Vance (Bar Council of Northern Ireland): I will answer that in the context of family fees, which brings us back to why we have asked for a widespread reform of all family fees.

Clause 27A looks at one tier of courts. I will just explain about the family courts and how that leads to experience. We have the family proceedings court, the Family Care Centre and the High Court. The Bill looks only at the High Court, so it is looking at one tier in isolation: that is not how the family system works or how a family barrister works, because people often work across all three tiers. It makes no sense for the Department to target one tier without looking at reform in all areas of fees and how they sit among each other.

How is it sustainable for a family barrister to continue practising in all tiers of court? A younger barrister will start in the family proceedings court. Those fees were set in 1995 with the inception of the Children (Northern Ireland) Order 1995. That is how old those fees are. Those fees have never been looked at by the Department, and, at this point, they are absolutely unsustainable for young practitioners. We then move into the Family Care Centre. Those fees, while they became legislation in 2015, were set in 2009. That is how old those fees are. It was only recently that the 16% was applied as an uplift. We then move into the High Court, and that is where the taxation issue comes in. What we say in the family Bar is that we need to look at how this impacts on practitioners across all tiers and all levels from the very junior to the very senior. It is difficult to do that when the Department has taken a piecemeal approach and said, "We will look at just one tier of court. We will not look at how that impacts on the system".

That leads on to the unintended consequences. That is a real fear for the family Bar. As you know, we represent the most vulnerable people in society. Nobody wants to find themselves in a family court. It is extremely difficult to navigate your way through it. There are a plethora of issues. We want to ensure that there are high-quality representatives dealing with those cases who have experience and the necessary skills. We want to maintain that level of expertise. With reforms that have not been properly thought through — there is no evidence about how they will look or how they will work — we worry that the work will become unsustainable, from junior members up to senior members, and that people will start looking for work in other areas. We simply do not want that to happen. People deserve proper, quality representation by family barristers, and it is really important that that is maintained. We worry that this is ill thought-out. We do not know the consequences. We are not scared of reform — that is why we have come forward on many occasions and said, "Absolutely" — but we need to look at the system as a whole.

Mr Kingston: Thank you for your attendance and for your paper. I am still thinking this through. It seems as though certain principles are being applied here. First, there is accountability for public funds. We believe in that, obviously; our role is to ensure good value for the public purse and that all public funds are well spent. In your paper, you refer to reports by the Public Accounts Committee and the Northern Ireland Audit Office in 2016, and you say that the Department is using those to justify its proposals. What was in those reports? Was it something like this? Was it that the Department should set rates?

Ms Kiley: I do not think that it was quite as express as that. There were more general recommendations about accountability. One of our difficulties with the evidence base is that it is not clear how the reforms are on all fours with the recommendations. We also say that the recommendations were made, as you pointed out, in 2015, which is 11 years ago. The Department has not looked at this since then. A lot has happened in the justice system, as in all areas of life, in those 11 years. It is not as simple as just implementing a recommendation. None of those reports explicitly suggested what the Department is proposing now. Equally, there has been a passage of time. The Department needs to look at the realities of the justice system 11 years after those reports. That simply has not been done.

Mr Kingston: We are all aware of the wider disputes over rates. You referred to rates being set in 1995: did you say that those had recently increased?

Ms Vance: The 16% came about because of the Burgess review of criminal cases. The Department simply took the figure of 16% and applied it to family cases. There was no reasoning behind that. There was no looking at family fees and at whether 16% was accurate or correct. That, again, is why we say that this needs to be looked at as part of widespread reform.

Mr Kingston: OK. The second issue is the separation of the legislature and the judiciary. You pointed to that in paragraph 2.6 of your paper, which is headed "Judicial Independence":

How true is that? Does it really challenge judicial independence if the Department sets rates for services delivered by barristers? It does not impact on how they undertake their function in interpreting legislation to make legal rulings.

Ms Kiley: There are a couple of elements to that. First, it seems that at least part of the motivation that the Department has offered for the reform involves the recommendation of the taxing master in respect of the uplift of interlocutory fees and the solicitors' hourly rate. As I said, the Department described that as an unforeseen budgetary pressure. The concept of judicial independence bites there, because it appears that part of the motivation behind this is that the Department does not like that recommendation and is taking this step in order to take back control in a situation in which it does not like a decision that an independent judicial officer has made. That engages judicial independence.

Mr Kingston: Do you mean the taxing master? Who do you mean?

Ms Kiley: The taxing master, who is an independent judicial officer.

The other element is that the taxing master has confirmed to the Committee, as has the Lady Chief Justice, that protections already exist in the system. The taxing master has a duty to the fund. One of our difficulties with the Department's proposal is that it has not explained what its difficulty is with the current system. It has not explained what the problem is that needs to be fixed. It is worrying that, through the proposals, the Department would take power from an independent judicial officer and bring it in-house. That is an encroachment on judicial independence, because the proposal would significantly stunt the powers of the taxing master. Under clause 27A, the taxing master would still have some powers, but it would stunt them, and that interferes with judicial independence.

Mr Kingston: That brings us to the third point. You have framed this around ensuring access to justice. It is similar to other lines of work. We hear, for example, that, if NHS dentistry is not paid at the right rate, dentists do not take up that work, and you raise a similar concern, saying that, without the right remuneration for certain work, barristers and solicitors would not take it up. In the way it currently works, does the taxing master have a scale to apply? How much control is there of the rate that is set? My reading of it is that the Department is going to set an hourly rate. I appreciate that you are aggrieved that that is unknown — you do not know what the rate would be — but, under the proposal, the taxing master will still have a role in determining the final amount. Is that right?

Ms Kiley: No. Our understanding is —.

Mr Kingston: Sorry. My other question is whether the taxing master currently uses a rate.

Ms Kiley: Our understanding is that the taxing master's role would be reduced to simply calculating the appropriate number of hours. The value would have been set. That gives rise to real concerns, because it is a significant reduction in the taxing master's role and significantly binds him as to what he can do.

In respect of the second question, different areas of law have different issues, and there are scales in other areas of law. We refer to the Comerton scale in civil law, for example. In essence, those are rates that set a scale of fixed suggested fees for particular types of work; they do not apply to everything. They apply in civil law, but there are other elements of law where there is no scale. What the taxing master does is try to come to a reasonable fee. The taxing master is legally qualified and has experience of working on such cases. A barrister submits their bill to the taxing master along with the justification for it and an explanation of what it entails. Applying his experience, expertise and analysis of what was undertaken, the taxing master then arrives at what is considered to be a reasonable fee.

Mr Kingston: Under the system as it currently operates, does he have different scales for different complexity of work?

Ms Kiley: There are not fixed scales in all areas. Complexity is certainly a factor that the taxing master takes into account, but there are not set scales in all areas yet. As we say in our paper and I said in my opening remarks, one of the issues that we have with that proposal is that the Department has not asked us about any of that yet, but the proposal assumes already that brief fees are gone and that hourly rates will be imposed. That is a significant change to the way in which costs are dealt with in Northern Ireland.

Mr Kingston: What are brief fees?

Ms Kiley: Brief fees are the fixed fees that barristers mark in certain areas where, for example, those scales do not exist. The brief fee is a fixed fee that takes into account not only the time spent on a case but the complexity and importance of that case. That system has been in existence in Northern Ireland for a long time. Part of our difficulty is that the proposal and/or discussion about hourly rates has been made without even engaging with us about the alternatives to moving to an hourly rate and whether there could be amendments to the current system that might satisfy the Department's concerns. That has not been consulted on.

Ms Vance: Even the current system as it applies to family law — in the family proceedings court and the Family Care Centre — works on a system of brief fees, and there is no suggestion that it would move to an hourly rate. Therefore, it is hard to rationalise why so different an approach is being taken to a different tier of court.

It goes back to the point that we have no evidence to support that it will work or what it will look like. The Department has given us no information about why an hourly rate has been suggested. Those fees were looked at before with regard to taxation. In 2015-16, considerable work was done around the brief fee and proposals for scaled fees. The Department abandoned that and never picked it up again. We say that there are alternatives to that model but that they and their effect need to be looked at. The hourly rate has really, for us, come from nowhere. It is such a shift in the current system and from the different court tiers that it is hard to rationalise why it would be applied to one tier when brief fees are used in other tiers.

Mr Kingston: Clause 27A seems very brief. We — well, I will speak for myself — I had difficulty understanding clause 28. I can accept your frustration that a lot of what it will mean in practice remains unknown. You might end up again in a negotiation/dispute with the Department on the amount that is set in practice.

Ms Kiley: It is about more than that: it is about the wider reform of taxation. If the Department has proposals to make about wider taxation reform, it makes sense to propose them as a package so that we, you and all stakeholders can understand the proper impacts of them. We are concerned that clause 27A is being proposed. It may, on the face of it, not look like it is of much significance, but, if passed, it will have significance. It will give the Department the power to make remuneration orders that could have a huge impact and consequence that we are not aware of yet because the Department has not properly assessed them.

Ms Vance: On your point about negotiations, we want to avoid a situation where we lurch from crisis to crisis. We see that happening with the criminal Bar. The family Bar has worked hard to maintain the system under the current fees, even though we are poorly remunerated in some court systems. We do not want to be in a situation where we have to lurch from crisis to crisis. We want to be in court dealing with cases for our clients. That is why it is so important that we get it right now instead of allowing the Department simply to have the power to enact whatever fees are, it feels, appropriate. Given the lack of reform to date, we lack confidence in the Department and its willingness to negotiate with us.

The Chairperson (Mr Frew): OK. There was confusion not just about the text of clause 27A and clause 28 but whether we were keeping clause 28 and clause 27A was a new, fresh amendment. It then transpired that it was a replacement for clause 28. For months, there was that confusion.

Ms Ferguson: This is more of a comment, to be honest, and then I may have one overall final question. As you are aware, I have asked about this on numerous occasions, including when officials were here a year ago on the issue, and I continue to ask it. The Committee is not clear on accountability and transparency versus budget; I am not clear on that at all. We have skeleton legislation, but it is clear that the reason for it being done in the first place has not been contextualised. I have seen no empirical data. We do not know what the fees would look like, how they would be set or what the plan is. It is blunt. When the Committee met the taxing master a few months back, he was not even aware of what his role would be or how it would change.

I am concerned about the impact that a move to fixed fees would have on cases not only for the profession but with regard to access to a quality service for all, particularly vulnerable people. Likewise, there is the question of what it will do for competition and value for money. There are so many unanswered questions, and there has been a stark lack of consultation. For something that is supposedly intended to improve accountability and transparency, there has been no accountability and transparency in the process. I have been vocal about that from the start, and I am gravely concerned. I am glad that clause 28 has gone, but new clause 27A does not make any difference.

As you said, there is also the question of how this ties in with the enabling access to justice programme. We have not even seen the whole picture so that we might understand the intricacies of how smaller pieces of legislation might impact on improving access to justice.

There has been a total lack of coherence. I still do not know why it is being pursued. I do not know where the evidence base is to tell me why. That is where I sit at the minute. I have not been convinced, even though I have asked officials a couple of times at Committee why they are doing it, what it will look like and what the context is. I have not been satisfied by any of their answers. That is my position.

In that context, do you accept the need for legislative reform of the taxation process, or, in the current circumstances, should the role of taxing master, in your opinion, be maintained as it stands?

Ms Kiley: We cannot accept that there is a need for reform, because it has not been shown to us that there is. We have seen no evidence, because the Department has not put it out there. We are trying our best to identify the rationale behind it. As I have said a number of times, if that rationale is to have more budgetary accountability or more accountability and transparency, protections already exist in the system. That has been confirmed. The taxing master has a duty to the public fund. Accountability and transparency are already there. If there is a particular issue that the Department is unhappy with and wishes to change and if it wants to target reform on that area, it should come with evidence to support that, and that reform should be targeted. As it stands, however, the Department has not identified an ill in the system that must be corrected.

I go back to your point about the coherence of reform. It is not just about what is in front of the Committee now but how we got here. There have been shifting sands. In December 2024, the Minister proposed a phased reform, saying that there would be reform of the High Court and bails first, then of the criminal Court of Appeal cases and then of civil cases. She set out steps and promised consultation on each of them, but that has not occurred. The policy position has shifted, but the promised consultation has not occurred, so it is difficult to respond. As a general proposition, however, we do not see that the Department has identified an ill that needs to be corrected.

We are open to discussions and are willing to be consulted. If the Department wants to consult us, we will have open discussions with it.

Ms Ferguson: Has the Department contacted you to consult on clause 27A?

Mr Mulholland: Yes, Department officials met us relatively recently to tell us about clause 27A. We expressed our view that we wanted to have close engagement and consultation to move it on. We asked some questions of them, and they provided the answers that they are able to provide right now, but we all accept that — I am confident that the Department also accepts this — we have a long way to go in understanding the current problem and, therefore, how to design the right solution.

Ms Vance: We met them to talk about clause 27A, but it was only following that meeting that we discovered that the enabling access to justice reforms were being proposed. It was disappointing that we did not receive information on both things at once, given that they are not stand-alone issues; it is about how they impact on the system as a whole. Information on one issue was delivered to us on one day, and then we discovered that there were further reforms but without receiving information on them to understand how they sit with each other or what the thinking behind them was. It is being dealt with in a piecemeal way. We say that you cannot approach it in that way.

Mr Mulholland: I know that we should not speculate about things going wrong, but say that, in a couple of years, there is not the family legal system or the judicial review system that we have today. I am sorry to warn you of this, but, as MLAs, the issues will present themselves at your offices. There will be families who can no longer access the family justice system or who have a legitimate challenge to the Government but for whom the opportunity to take that to a judicial review has gone. I am not scaremongering: the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 in England and Wales had exactly that effect. MPs were swamped in their constituencies with those issues and could not cope.

Ms Egan: Thank you for coming to the Committee and for your submissions. I want to clarify something, because I am a bit confused. You are concerned about the lack of consultation, but you have met officials from the Department about this: is that right?

Mr Mulholland: Yes.

Ms Egan: OK. Have you met them once about clause 27A? How many times have you met them?

Mr Mulholland: We have met them once, but there is not a live consultation. It was a meeting to discuss what they had in mind.

Ms Egan: I understand that a working group has been established to look at the solicitors' hourly rate and barristers' interlocutory fees: was clause 27A raised at that group?

Mr Mulholland: Clause 27A was not the proposal then. At that time, it was clause 28.

Ms Egan: OK. That is no problem. That was for my own clarification.

Correct me if I am wrong, but my understanding is that clause 27A looks as though it is trying to bring us into line with some of what happens in England, where the rates are set by the Ministry of Justice. Obviously, however, England has quite a different legal system from us. It does not have a taxing master. What is your opinion on that and on whether that system works? Do you think that that is what clause 27A looks like it is trying to do?

Mr Mulholland: We think that the Department has looked at other jurisdictions and that what it has proposed has some similarities to those. However, in England and Wales, the proposals to reduce the powers of the taxing master have been halted because they were met with an unfavourable reaction and predictions of further problems that would arise from them. I do not know whether the situation in England and Wales is as stable as we might want it to be. Each jurisdiction has a different approach to this.

All that said, the legal aid system in Northern Ireland needs to cater for Northern Ireland. The system here cannot be taken as an exact analogue of what happens in England and Wales. As you acknowledged, there are differences in the systems.

Ms Egan: We need to ensure that there is not only oversight of public money but fair remuneration for those in the legal profession and access to justice. I am particularly concerned about family law and the family courts. I have talked to a lot of my constituents who are going through that process. They are all vulnerable, and children are often at the heart of it. It is difficult. We do not have infinite resource.

Will you explain, for my own knowledge, how the brief fee currently works and how it is submitted by barristers? What are the workings out around that?

Ms Vance: I can certainly answer that in the context of family cases. At the end of a case, we have to provide a lengthy and significant report to the taxing master to set out what the case involved.

The Chairperson (Mr Frew): Is that for every case?

Ms Vance: Yes, for every case. Every case has an individual report, and that is an extensive piece of work in which we set out and break down exactly what was involved in the case, the issues, any client vulnerabilities and the outcome of the case. We then set out all the work that was done in that case.

That report then goes to the taxing master. He will also be provided with a file of papers that includes all the court orders: everything that happened in the case. He will read the report and assess whether that fee is fair or should be reduced. He will then set out his reasons and justification for that. That is how the process works. It is that independence and judicial oversight that is, we say, the appropriate system, and it has been working. Again, as Denise pointed out, the Department has never been able to tell us why it is saying that that is not working.

Ms Egan: OK. So, you have to produce that brief for every case. Obviously, that is quite a burden on you. How will clause 27A negatively impact on that?

Ms Vance: That is the difficulty: we do not really know what the Department is proposing. We have been told only that there will be hourly rates, nothing more, but that is a considerable shift from the way in which we work. For example, firms that use time recording will have time-recording systems and will record billable hours: that is not how we work. It would be extremely onerous on practitioners.

We often work unsocial hours. In the context of a family case, families in the court system often move from crisis to crisis as things happen. A case is not static: you get one set of facts at the start, and, as the situation evolves, different problems occur for that family. Often, those can occur late at night or in a crisis, and barristers and solicitors will be expected to down tools and deal with that crisis. There is no thought in the Department about how we would look at that unsocial working pattern.

Again, it all comes back to sustainability: this work has to be attractive enough to professionals that they keep doing it and keep ensuring that those clients get a high-quality service. We simply have a dearth of information on what that would look like and how it would impact on individual fees.

Ms Kiley: Previously, we provided a paper on brief fees to the Committee. If it would be useful, we can provide that again. One of the things about a brief fee is that it is capable of encompassing components that reflect the complexity and importance of a case. It is not just about your time spent. It can reflect such elements as the urgency, the particular factors involved, the vulnerabilities and the importance of it for the individuals and sometimes, in wider public cases, for the wider public too, because a decision in one case may have implications and set the law for other cases. A brief fee is capable of taking into account and encompassing those things.

An hourly rate fee is a blunt instrument that values form over substance, in that it is about the time that you put in rather than the value and quality of the product that you get out. It is not about simply replacing one thing with another. It is not the case that an hourly rate can simply step in and may result in a change in the way we work or require us to time-record. It is a fundamental shift in the way that barristers get paid. That is why we say that it is such a significant change that it really needs to be more carefully thought out than it has been.

Ms Egan: OK. I appreciate your explaining that.

This is my last question, Chair, if that is OK. I appreciate that you have come to tell us that you do not accept the need for reform and feel that a rationale has not been provided to you by the Department. I acknowledge that you said that you would be willing to look at alternatives. Do you have any alternatives in mind that you would like to provide to the Committee today? Is there anything that would, you think, work and that you would like to discuss with the Department?

Ms Kiley: We referred to some potential alternatives in a broad form in our paper. That is all that we can do at the moment because we do not properly understand the rationale. As David put it, it is hard to understand the solution if you do not know what it is that someone is trying to fix. In broad terms, there are other tools out there: for example, the Comerton scale, which we have already discussed, or potential tweaks to the brief fee and requirements to estimate that. There are, potentially, things that can be done, but we are at the early stages of considering that because we have not been asked specifically about it by the Department. Yes, we are willing to discuss it. Yes, there may be things that can be done, but, at the minute, without really understanding the purpose behind the reform, we cannot propose coherent solutions.

Ms Vance: That is it: how we come up with a solution when we do not know what the problem is. We have repeatedly asked the Department, "What is the problem?". We are not closed to looking at that, but, if it can identify the problem that it is trying to fix, we can turn our minds to consultation on it.

Ms Egan: OK. Thank you.

The Chairperson (Mr Frew): It is my opinion that clause 27A materialised only when a £7 million pressure was added to the budget. My understanding is that that pressure motivated clause 27A, notwithstanding what the Minister was going to do with clause 28. Is that your understanding?

Ms Vance: It is that, and, as Denise referenced, it is about the working group, the interlocutory fees and the change to the solicitors' hourly rate. In many ways, it was almost a knee-jerk reaction to that, and that is our only understanding of where it came from.

Ms Kiley: If that is the motivation, this is not the solution. As we have said, an hourly rate does not provide predictability. If predictability is required, the hourly rate is not necessarily a solution. It might just shift the unpredictability to a different place. If that was a rationale that was properly articulated to us, we might be able to turn our minds to thinking about potential tweaks to the current system. Certainly, it seems that that is the motivation, and the timing suggests that. We are all at a disadvantage because of the proposal's timing, but that seems to be a major factor. If it is, the hourly rate is not the solution.

Mr Kingston: I always like to test my understanding. Clause 27A is brief. How much of what you have said is speculation, or do you have grounds for talking about an hourly rate? Clause 27A includes the following:

I presume that the "person" is the taxing master. Currently, is the taxing master independent of the Department?

Ms Kiley: Yes.

Mr Kingston: The new clause is saying that the Department can issue an order, restrictions or guidance, is it not? It says "may, or must", and we need to understand that. The hourly rate that you mentioned is not specified in that clause.

Ms Kiley: It is not specified in the legislation that is before you, but we understand that it is the Department's intention.

Mr Kingston: Has the Department indicated that to you?

Ms Kiley: Yes, and the remuneration orders would restrict what the taxing master could do. If a remuneration order existed that set hourly rates for certain types of work, the taxing master's role would be reduced to calculating whether the hours marked were reasonable. That is the only foreseeable role that the taxing master could have.

Mr Mulholland: This might be a question to ask: if the Justice Bill was not going through at the moment, would clause 27A be there at all, or would the Department do it in the sequence that we are recommending, which is to build the evidence base, identify the problem and then legislate for it? However, the pre-emptive legislation is part of the difficulty, and, unfortunately, it pulls us into speculation. Certainly, the Department has indicated that the proposed model would be based on hourly rates.

Mr Kingston: Often, we see an enabling power in legislation, and it gives a power that can then be exercised. You are in the dark on that, but you have strong suspicions.

The Chairperson (Mr Frew): I will leave it there. Thank you very much for your time today. It was a marathon session, and we were struggling for time. Thank you very much.