Official Report (Hansard)

PDF version of this report (155.55 kb)

Committee for Justice

Use of Legal Services: Criminal Justice Inspection Northern Ireland

The Deputy Chairperson:

I welcome Dr Michael Maguire, the chief inspector, and James Corrigan, who is an inspector. I am sure that you heard that this session will be reported by Hansard. I will hand over to you, Michael, after which Committee members will ask questions.

Dr Michael Maguire (Criminal Justice Inspection Northern Ireland):

Thank you again for the opportunity to brief the Committee on one of our reports. As there is quite a lot of detail in the report, I propose to pick up on some of the key messages as we think about how we move forward.

The report is one of our series of studies on what are generally termed value for money inspections within the criminal justice system. In reports published previously, we looked at improving procurement and the use of consultants; this report carries on that theme. The team’s lead inspector was my colleague James Corrigan. We were also supported by Stephen Wooler, who, until very recently, was the chief inspector of the Crown Prosecution Service Inspectorate. He provided us with specialist advice throughout the study.

There are three real chunks of legal expenditure in Northern Ireland, and the report deals with two of those. We did not look at criminal legal aid, although there are obvious intersections in the work that we did. We examined how the various justice agencies use internal legal services operationally. We also looked explicitly at expenditure from within the Public Prosecution Service (PPS), which falls within our remit.

I will provide the context for the study. Over the three-year period studied, the justice system spent £300 million: £155 million on criminal legal aid, £106 million by the Public Prosecution Service and £36 million to meet the civil, corporate and operational needs of other justice departments.

My first point relates to the purchasing of legal services. Three sources of legal services are available to justice bodies: internal legal services, in which they employ their own staff; the use of government legal services, such as the Crown Solicitor’s Office (CSO); and the direct procurement of legal services from independent private practitioners: solicitors and barristers. Cases that require advocacy in higher courts require the involvement of barristers from the independent Bar.

The first thing that struck me about the purchase of legal services is that the practices lack the discipline that might be expected of the procurement of other professional services in the public sector. Standard competitive tendering arrangements are embryonic and used mainly for the services of solicitors, with costs determined by a range of different fee structures that lack transparency and predictability and have resulted in higher than anticipated expenditure in the justice system.

One of the key messages of the report is the need for sustained improvement. That requires a more co-ordinated and consistent approach by public sector buyers, which could be led by the Department of Justice in conjunction with the Department of Finance and Personnel (DFP), particularly the Central Procurement Directorate (CPD).

The second area that I want to mention is the cost of legal fees. We drew on existing research and analysis, as well as that provided by the PPS and the Court Service. In the report, we state that, at the time of the inspection, the cost of legal services in Northern Ireland, for both defence and prosecution, exceeded the fees of equivalent cases in England and Wales. A sample of cases in 2008, for example, showed that prosecution fees in Northern Ireland were 30% more expensive than those paid to prosecuting counsel in England and Wales. Therefore, the cost of legal fees in Northern Ireland is an issue.

One of the important points that the report highlights is the differential in the payments made to defence and prosecution counsel. Defence were paid up to 30% more, whereas the equivalent gap in England and Wales was 19%, but with a strategy to reduce it to 5%. Costs are high, and we note the differential between defence and prosecution in the report. The report also includes a recommendation that PPS and the Court Service should work towards a convergence in fees paid. That should be a convergence downwards; it is not a recommendation to pay prosecution counsel more so that they receive the same as the defence counsel. I just want to be clear about that point.

Mr Weir:

That is one question off the agenda.

Mr Wells:

My best question has gone. [Laughter.]

Dr Maguire:

I should probably stop there before I ruin anybody else’s chances.

A further issue is the quality of legal services. Arrangements for the measurement of the quality of legal services were found to be weak. Inspectors found little evidence of any formal approach to quality assurance and, therefore, limited scope for dealing with any issues of underperformance. Again, that relates to the disciplines associated with public expenditure and the kind that one would expect to find across different professional services. In that context, we have questions.

The report goes on to talk about specific issues relating to the PPS. The first point to make in that context is that, since our baseline inspection in 2007, we found that the PPS, as an organisation, had taken steps better to control expenditure and council fees in Magistrate’s Courts and the Crown Court, and it had achieved greater success in the latter.

The inspector also recommended that the PPS review the delivery of core prosecution work to include the development of in-house advocates for Crown Court cases and scope to include an advocate depute role, such as that used in Scotland. The review should also examine the cost-effectiveness of the distinction between the roles of directing lawyers and those who present cases in court, because there is a separation between the two and the costs associated with each.

Those are some of the key messages that come from the report. It is probably best to move on to questions now, and I am happy to take any further points.

The Deputy Chairperson:

OK. Thank you very much, Dr Maguire. In your opening remarks, you said that procurement lacked discipline and transparency. Will you elaborate on that?

Dr Maguire:

In considering how professional services generally are procured, we look at certain areas, such as consultancy services or other aspects of public procurement. We would expect to observe competitive tendering; transparency of fees; some sense of how to engage with those delivering the service to determine what the overall costs might be; quality assurance issues and the quality of the service delivered. Those are, if you like, the architecture in which government expenditure is procured. When we examined procurement in legal services across the different organisations, we found many of those to be lacking

The Deputy Chairperson:

What was lacking? Was it competitive tendering?

Dr Maguire:

All of the above elements that I mentioned were lacking.

The Deputy Chairperson:

In some of the report’s tables — I will not pick one in particular — a distinction is made between internal and external staff. Will you explain what that means? In your opinion, are the appropriate staff being hired?

Dr Maguire:

In the report, we do not make a judgement on the balance of external and internal staff, other than with regard to the PPS. One area for improvement there is the greater use of internal staff, both for presenting in court and, potentially, the creation of in-house prosecutors. Those would be salaried barristers who could actually appear in court on behalf of the PPS. In that sense, we think that the balance could be changed.

Overall, a distinction is being made between the two, but it is a complex situation. We have organisations that go to the Crown Solicitor’s Office, which will then procure barristers should representation in a higher court be required. They can also go directly to individual firms of solicitors who will procure barristers on their behalf. In the case of the Public Prosecution Service, an in-house team would procure barristers to represent it in court. So a variety of models is in place. It is fair to say that we are not talking about a one-size-fits-all system. In the context of the legal system, that would be impossible.

When considering the different aspects of how money is provided, it is important that, for each particular element, the disciplines that we talked about are applied. Therefore, if a Department wants to get legal advice from solicitors, why does it not competitively tender for firms of solicitors and invite them on to a panel? That way, a Department could judge them against quality and price criteria and pull together a panel from which it could draw. That is the kind of initiative that we are talking about. All such initiatives are moving in the direction of establishing greater discipline in the delivery of public funds.

The Deputy Chairperson:

If advice is being sought now, is it being sought from a single firm or a number of firms?

Dr Maguire:

It can be either; there is a variety of models.

Mr Wells:

You may have noticed that this issue is a hobby horse of mine. The other day, I asked the Minister whether he could live on £680,000 a year, because some of the Bar Council folk told us a few weeks ago that they could not. However, I suspect that you could live on that if you supplemented your meagre income with some private work to bring it up to an acceptable annual salary.

Mr Weir:

With a bit of window cleaning on the side.

Mr Wells:

Yes, as well as a bit of window cleaning, just to supplement your salary.

Dr Maguire:

Are you asking me whether I could live on £680,000? Personally, I could live on that. [Laughter.]

Mr Wells:

You could take a pay cut and live on that. Seriously, some of the figures are cricket scores.

I will play devil’s advocate on behalf of the practitioners. Given that there are more high-profile, serious cases in Northern Ireland, could it be argued that you are not comparing like with like? We know that there is a 30% disparity between the fees paid here and those paid in England and Wales and that the target is to reduce that disparity to 5%. Let us take Bedfordshire, Suffolk, or somewhere similar, as an example: is it realistic to compare the fees paid to private practitioners, barristers and solicitors in those areas with those paid to practitioners in, for argument’s sake, west Belfast, anywhere in Belfast, or south Armagh? All those areas in Northern Ireland have a lot of high-profile, extremely complex and often quite serious cases.

Dr Maguire:

If you were comparing west Belfast with an area of Bedfordshire, the answer would probably be no. However, if you were comparing the totality and mix of work in Northern Ireland as a region with that in England and Wales, the answer would be yes. In overall terms, parts of England and Wales have quite a breadth of work, and so, in a sense, we are talking about averages. One can always rush to the extreme and say that we are different because a certain area of work is more complex. However, the vast majority of work that we do here is, in my view, directly comparable with the core of what is done elsewhere. There will always be blips caused by more complex pieces of work, but, in my view, overall, they do not justify the kind of differences that we have seen.

Mr Wells:

If the disparity between the fees were reduced from 30% to 5%, do you have any idea how much that would save the Department of Justice?

Dr Maguire:

I have not done those calculations.

Mr Wells:

Do you know whether it would be in the millions, tens of millions or hundreds of millions? It seems a realistic and sensible target, but it still gives a premium to barristers and solicitors in Northern Ireland.

Mr James Corrigan (Criminal Justice Inspection Northern Ireland):

We know that the PPS spends, at present, about £5 million a year on counsel fees.

Mr Wells:

So the 30% disparity represents about £1·5 million or £1·75 million, which is not a huge amount.

Mr Corrigan:

It is not massive.

Mr Wells:

It is still a good salary.

My other question is about an allegation that I have heard since our last meeting. Someone came to me privately to tell me about one of the scams operating in Northern Ireland. Counsel submit a fee based on a trial running for five days, despite defendants walking into court and pleading guilty, with the result that cases last for only a couple of hours. The argument for doing so is that counsel had to do the work for a full listing and a full hearing. Even when clients have already told counsel that they intend to plead guilty, counsel submit five days’ fees. Is that possible?

Mr Corrigan:

It is possible, and it was probably more widespread a number of years ago. The opportunities for that type of case these days are more limited because of the abolition of very high cost cases (VHCCs) in defence work. The significant reduction in special fee cases in the PPS means that counsel are now paid on the work actually completed — on the basis of fixed fees rather than anticipated work. So the answer to your question is that it remains possible, but less so than a couple of years ago.

Mr Wells:

Can you see why the public would regard that as a gross misuse of the system? If a solicitor or barrister has a good idea what is going to happen and the scam remains possible even under the new, more competitive situation, frankly, he or she is getting money for nothing. Let us be honest: if anybody else did that, it would be seen as a scam. There must be an opportunity to plug that loophole completely.

Mr Corrigan:

There is such an opportunity. A mechanism is in place through the taxing master for the assessment of fees. The taxing master, who is an independent judicial officer, assesses the fees, and, if they are not appropriate and relevant, they can be amended.

Mr Wells:

Is there still provision in Northern Ireland for the payment of refresher fees? I do not know whether that is the correct term, but is there still provision for senior counsel to claim fees even after a case has been adjourned?

Mr Corrigan:

It is still possible. It is probably best for the PPS to deal with the specifics of that issue and with the arrangements for their counsel. We did not look at legal aid, which is an area in which that practice is probably more widespread, but that did not form part of this inspection.

Mr Wells:

Could someone lying in Lanzarote during the Twelfth fortnight be paid £800 a day to keep his or her mind fresh? Is that possible under the present system?

Mr Corrigan:

It is difficult to answer that question.

Mr Wells:

I think that “refresher fees” is slang, but is that not what happens? Are counsel being paid a daily rate to keep their minds sharp after cases have been adjourned? If I was being paid £800 a day, my mind would be very sharp.

Dr Maguire:

I understand where you are coming from, but we did not look at that issue in the context of this report. Theoretically, it is possible. We did not find any evidence of it, but that does not mean that it could not happen.

Mr Wells:

Is there any evidence that, for similar cases, barristers and solicitors in Northern Ireland are paid more because they have to call on expert witnesses? The argument has been made that getting expert advice in Northern Ireland is very expensive and that the cost must be passed on to the practitioner who provides it. Could that be a reason why our fees are higher?

Mr Corrigan:

Probably not, because the experts are paid separately.

Mr Wells:

Are they are not included in the 30% differential?

Mr Corrigan:

No.

Mr Wells:

So does that excuse not hold water?

Mr Corrigan:

It does not.

Mr Wells:

That is interesting. Thank you.

Ms J McCann:

You are very welcome. One of your recommendations is that the Department of Justice should tie in with the Central Procurement Directorate and the Department of Finance and Personnel. Across other Departments, common practices exist for the public procurement of services, works and goods. Procurement has been identified as one of the key drivers in economic growth generally and within government. You suggest a tie-in, but will you monitor and evaluate any progress made by the coming together of those three bodies to consider the procurement of services?

Dr Maguire:

As with all of our reports, we will go back to the organisations, at a time yet to be determined, to see whether the recommendations have been implemented. In the context of a report such as this, it is good practice to produce action plans and for different organisations to take ownership of what they are going to do and detail the timescales in which the activities will take place. As a matter of course, irrespective of whether there is an action plan, we will go back and see whether the recommendations have been implemented.

Mr Eastwood:

In your report, you refer to the measurement of the quality of legal services being weak. You also suggest that a quality assurance scheme, similar to that being introduced in England and Wales, be implemented. Will you elaborate a wee bit on what is happening there and what could happen here?

Dr Maguire:

I will speak in general terms about what our thinking was, and James will pick up on the detail. The management of professional services is well established. For 10 years, I was a partner in a consulting firm, in which it was a matter of course for the quality of what people did to be professionally managed. Those disciplines and principles could equally apply to people in any profession. What we said in the report was that the PPS in particular — we were not dealing with criminal legal aid — needs to develop and further develop quality assurance mechanisms, so that, from a public expenditure point of view, we know that what is being delivered is appropriate and to the correct standards.

Some of those mechanisms relate to process issues, and, to a greater extent, the performance of advocacy in court. The Crown Prosecution Service Inspectorate has done some work specifically on the quality of advocacy in court, which involved observations of the performance of barristers in court, and so on. That is one mechanism, and the CPS has been thinking about others, to which we refer in the report and about which James will, perhaps, say a few words.

Mr Corrigan:

One of the initiatives that the CPS is advancing is the use of independent assessors to monitor performance in court from an administrative, logical and logistical point of view. In other words, the monitoring of whether, for example, people turn up on time.

Secondly, and probably more importantly, is the quality of the legal expertise, the monitoring of which is just at an early stage in England and Wales. We recommend that the PPS, in determining its own quality assurance scheme, take account of developments in England and Wales. We emphasise that England and Wales have not reached the point of best practice; it is a process of evolution. However, important lessons can be learned from what is happening with regard to bringing in independent assessors and determining which criteria should measure the performance of counsel. That is the key to that recommendation.

Mr Eastwood:

Has there been any movement here? You say that it is slow enough.

Mr Corrigan:

There has been some movement, and the PPS will be able to elaborate on that in the next session. However, progress has been slower than we would have wished. It is a difficult enough project to measure the quality of independent counsel, and we accept the challenges involved.

Dr Maguire:

When I presented to the Committee previously, we talked about our future inspection programme. In considering the PPS as part of our inspection agenda, we propose to build in the quality of advocacy as part of our work in relation to the inspectorate.

Mr Lynch:

I refer back to your 2007 report, which states:

“I hope that the findings and recommendations of this review will assist the criminal justice system to further develop its priorities for procurement and thereby deliver a more effective and efficient procurement service, which provides best value for money”.

What has changed between the publication of the 2007 report and this one?

Dr Maguire:

The more general procurement report did not specifically consider legal services. Therefore, in that sense, no direct comparison is made of one with the other. The piece of work that was helpful in shaping where we felt there was an improvement, or otherwise, was the baseline inspection of the Public Prosecution Service. We made a number of recommendations in that report on the need for the PPS to gain greater control over the expenditure. When we studied that area again recently, we saw some improvements. As you can see from the figures, the overall spend on external counsel has come down. That is one area for which I can provide you with some sense of what has changed since the previous inspection. However, the more general procurement report concentrated on goods and services; it was not specifically about legal services.

Mr Weir:

Jim Wells suggested to me that, as a former barrister, I should preface my remarks by saying that as someone who gave up the Bar and, potentially, a couple of hundred thousand pounds a year to be here this afternoon, you had better listen to me.

Mr Wells:

He is very noble.

Mr Weir:

Such is the strength of my nobility in this issue.

Dr Maguire:

I would not dare not listen to you.

Mr Weir:

I am sure that you will be all ears. You highlight the disparity between legal fees in Northern Ireland and those in England and Wales. I appreciate what has been said about there being a mix of fees across a region. However, I want the situation on the differential to be watertight. Is the level of disparity 30% when you compare like-for-like cases, or is that simply the differential between the overall totals?

Dr Maguire:

The figures refer to the overall totals.

Mr Weir:

I presume that there is still some disparity if, for the sake of argument, we take a similar type of offence and a similar level of complexity. There is still a considerable gap.

Mr Corrigan:

There is a considerable gap. The PPS, in conjunction with the Crown Prosecution Service in England and Wales, carried out some research involving a comparison of a sample of cases. That, again, confirmed the discrepancy between fees paid in specific types of cases.

Mr Weir:

You highlight a second issue with the cost of legal fees, which is the disparity between prosecution and defence. In some regards, that might create an added problem. I appreciate that there is no alternative to bringing one set of figures down rather than equalising the two by raising the other. If you try to bring the disparity down to the level at which it exists in England and Wales without doing anything about the gap between prosecution and defence, there would, by definition, be a massive increase in that second gap.

I appreciate that some of the differences and the reasons for them have been highlighted. It may have been too late to take it into account in your study, but have you looked at the impact on the gap between prosecution and defence of the changes to legal aid payments that the Department of Justice made? I presume that those would have an effect on reducing the potential gap between prosecution and defence. If you have had a chance to look at that, what has the direct impact of those changes been on the gap?

Mr Corrigan:

The short answer is no, we have not. It is probably too early to do that type of assessment. It would have to be done on the basis of cases that have already gone through the system. There are very few of those at this stage.

Mr Weir:

This may be an issue for the Department of Justice. One of the key issues as part of the legal aid settlement is an overall review process. It would be useful if that process were to examine the differential between prosecution and defence as a result of that settlement.

There is good sense in the PPS having greater in-house advocacy. I have to admit a lack of familiarity with the Scottish system, but the advocate depute role seems to be a time limited position. How do you see that working in Northern Ireland? I can see one complication: I entirely understand, and there is good sense in the in-house side of it, but, essentially, if you are locking in a barrister for a period of time, his or her concern will presumably be that, at the end of that period, they will return to being a free agent. I can see a difficulty with people going to and from independent practice as opposed to it being a more permanent appointment. I would be interested to hear your views on that, but I am a little more inclined towards a greater emphasis on in-house advocacy on a more permanent basis. Will you outline a bit more of your thinking on that matter?

Dr Maguire:

I will say a few words about our thinking on going down this route, and James can give a bit more detail. There is another, perhaps more controversial recommendation there, which is around access for members of the English Bar to practise in Northern Ireland. Part of the thinking on that had to do with having a mixed economy, for want of a better term, of provision of legal services in Northern Ireland. A mixture of private sector provision and local competition from outside Northern Ireland with relevant and direct expertise could be applied in a local context, along with a mixture of internal provision. One of the other recommendations is about not just taking the decision but taking it right through to advocacy in court itself. That provides a different way of doing business. Those are some of the design principles, for want of a better term, that underpin some of those recommendations.

Mr Corrigan:

From the prosecutor’s office point of view, one of the key advantages of the Scottish model is that it provides an alternative source of expertise, which is available to do a considerable amount of work in a defined period.

Mr Weir:

I want to get a better handle on that. When you talk about a defined period, are you talking about a few months, or two or three years? Maybe it is flexible.

Mr Corrigan:

There is a certain amount of flexibility. In Scotland, for example, a person is contracted for 220 days a year on a three-year contract. There is no requirement to stick to those defined periods, but that gives a level of certainty to both parties. You are right that it does not get round the difficulty of that individual going back to independent practice, for example.

Mr Weir:

Forgive my ignorance of the Scottish system. I am aware of the English system and of what happens in Northern Ireland. Do the Scottish operate a chamber system, as in England, or is it almost like an independent system?

Mr Corrigan:

It is very unlike the chamber system in England and Wales; they have a much more independent mechanism. It is probably more similar to what exists in Northern Ireland and the Republic of Ireland.

Mr S Anderson:

Thank you, gentlemen. I want to continue the theme of disparity. A reference was made to the significantly greater availability of two counsel taking up defence cases, and the need for a downward trend. When compiling your report, did you find that there are a lot of two counsel cases? Did you find a lot of evidence that defences were using two counsel?

Dr Maguire:

Yes. We do not have the figures with us, but, in percentage terms, it is significantly higher than what you would see in England and Wales.

Mr Corrigan:

When we undertook this piece of research, we found that 11% of indictable cases in the Crown Court had two counsel for the prosecution. That compares to around 5% in England and Wales. That is the discrepancy between Northern Ireland and England and Wales. The bigger issue is the difference between prosecution cases and defence cases, because 11% of indictable cases have two prosecution counsel, but around 50% of defence cases have two counsel. That is where our largest concern rests.

Mr S Anderson:

To get a more level playing field, is it your view that there should be a move from two counsel to a single counsel? How does this work in prosecution or defence if it is to give good justice on one side or the other? How do you get the downward trend?

Dr Maguire:

It is a judicial decision as to whether there is one or two counsel. My understanding is that there is potential to move some of the decision-making to a higher court. At that stage, they are much later into the case, and, therefore, decisions are taken much later on in the process, as opposed to at the beginning. We are taking that view as to two counsel, and we have solid information in there. Where you take the decision is important in that regard. However, in overall terms, the existence of two counsel is one of the key factors that contributes to the difference in overall expense in the two areas. Based on the experience of England and Wales, there is no reason why a very experienced junior counsel cannot take the lead in some of the cases. We think that that has to be part of the mix and the debate moving forward.

Mr S Anderson:

It seems to be a big part. I move now to specific issues in the PPS. In your report, you state that the PPS has taken steps to better control its expenditure on counsel fees in the Magistrate’s Court and Crown Courts and that it achieved greater success in the Crown Courts. We see that a monthly figure went from around £30,000 to £7,000. Then, for some reason, it reverses and goes up again. The PPS tried to explain that. When you look at those comments, can you say that it is achieving greater success?

Dr Maguire:

The comment was made in the context of the 2008 baseline inspection, and the overall trend was down. Obviously, there will be peaks and troughs. That is why trend is important in that regard. The overall trend was in a downward direction. We would caution that that is continued to be monitored, because if it starts to rise again, you will lose the benefits of some of the disputes that have taken place.

Mr Corrigan:

When we were doing the fieldwork, that trend was becoming more negative again, and we expressed that concern in the report, as you rightly pointed out. The explanation from the PPS for that increasing expenditure in the Magistrate’s Court was resource problems in the PPS and the shortage of prosecutors in court, which required the prosecution to use agents, or, in other words, counsel, to undertake work in the Magistrate’s Court. It is Criminal Justice Inspection’s view that there should be very little counsel required for Magistrate’s Court work. That should be done in-house. At the time of our inspection, they were spending £300,000 a year on counsel in the Magistrate’s Court. That should be significantly reduced moving forward.

Mr Wells:

I will return to one of the questions that Sydney asked. In a former guise, I regularly sat in court, sometimes waiting for my own case, unfortunately, but I noticed —

Mr Weir:

Did you get off?

Mr Wells:

Yes, sometimes I did. A certain MLA in this place represented me very well. I often wonder what on earth the junior counsel does, because all the lead activity is done by the QC, who is the senior counsel, and the junior counsel just sits there. What is their role? Why do you procure their services? It strikes me that a senior counsel or counsel of some description could do it entirely themselves.

Dr Maguire:

Can I dodge the answer to that question? That is a question that you might want to ask the PPS. When we have done work on the quality of advocacy and found what role the junior counsel plays, I will happy to answer that question directly.

Mr Wells:

What have you found?

Dr Maguire:

I prefer to stick to what we have found in the context of the body of work that we have.

Mr Wells:

I do not see the steam rising out of the pen of the junior counsel. He is normally, or she, as it often now is, on half the daily rate of the senior counsel. It just seems to be a bit strange. I do not have a junior MLA to look after me. In most roles in life, you do it yourself.

The Deputy Chairperson:

I have a couple of concluding questions. Have you seen the Department’s proposed action plan for progressing those issues?

Dr Maguire:

No.

The Deputy Chairperson:

We are about to receive a briefing on it. What timeline do you envisage for better co-ordination between DFP, the Department of Justice and CPD?

Dr Maguire:

In terms of follow-up?

The Deputy Chairperson:

Yes.

Dr Maguire:

Broadly, for such a report, what we do is think about a follow-up about 18 months after completion of the inspection. It depends on the figure, but we are talking about 18 months to two years.

The Deputy Chairperson:

No one else has indicated that they have any other questions. Thank you very much for your presentation.