Submission to Committee for Justice from Bar Council

INTRODUCTION

1. The Bar Council welcomes this opportunity to make a presentation to the Committee for Justice. The recent devolution of policing and justice provides both challenges and opportunities to this Assembly and this Committee but also to those involved in the administration of justice in this jurisdiction. Because of the absence of a local Minister for Justice over a number of years there has grown a “disconnect” between those involved in political life and those involved in the legal professions. This can result in a lack of understanding of what the professions do and the contribution they make to the administration of justice. The Bar believes that we can both learn much from each other in terms of how the professions operate and the public interest in ensuring an effective and efficient system of justice in this jurisdiction and hopes that this presentation will be the start of an ongoing process.

BACKGROUND INFORMATION ON THE BAR AND THE ROLE OF BARRISTERS IN THIS JURISDICTION

2. The legal profession in Northern Ireland is divided into 2 distinct branches:-

The Bar (which comprises barristers); and

The Law Society of Northern Ireland (which comprises solicitors).

The profession of barrister is designed to maintain a separate and independent Referral Bar which operates partly alongside the direct access provision of services by solicitors, but principally compliments the services on offer from solicitors.

3. There are a number of core duties which define and shape the independent Referral Bar. These are: -

a) Duty to the Court;

b) Duty to promote the client’s interests fearlessly;

c) Duty to accept instructions in any case in a field in which a barrister professes to practice at a proper professional fee unless justified by special circumstances;

d) Duty to act as a sole trader;

e) Duty of independence.

4. The consequences that flow from these core duties are many. The chief ones are:-

i) confidence of the judiciary;

ii) independent fearless representation by the Counsel of choice;

iii) availability of advocacy and specialist expertise.

It has for a long time been recognition in a democratic society of the invaluable role performed by barristers in the broad spectrum from representing victim’s rights to defending those accused of the most serious of crimes.

THE BAR LIBRARY SYSTEM

5. Since its origin in the 1920’s the Bar has been a collegiate organisation and works from the Bar Library. Young members have access to the advice and experience of more senior colleagues. The consequences of all barristers working together from the same building using the same facilities and sharing the same ethos is that the religious and political differences that have so disfigured Northern Ireland have not been permitted to operate. It has facilitated unhindered access to legal representation for many unpopular causes throughout the troubled history of Northern Ireland. The cohesion and collegiality of the Bar has thus ensured a broad acceptance of the impartiality of the Northern Ireland legal system, thus aiding the administration of justice, a fact which has been acknowledged on many occasions by the judiciary and successive governments.

6. The Bar as a whole has invested £20m in the new Bar Library, an investment which will benefit not just the present members but all future members of the Northern Ireland Bar. Furthermore it is an investment which the members of the Bar have shouldered alone. There have been no subsidies, no tax breaks and no government assistance. The Bar has not attempted to pass the costs onto consumers by way of increased fees. It is a cost that the Bar has borne itself because of its members’ belief in the Bar Library system and the need to provide a service which is fit for purpose. A Bar Library system also continues to operate in Scotland and the Republic of Ireland.

7. In the history of the Northern Ireland Bar no-one with the requisite qualifications has been refused entry because he or she has been unable to obtain a Master. Anyone who has qualified to practice as a barrister in Northern Ireland has been able to find a place in the Bar Library. The Bar Library of Northern Ireland is a welcoming organisation, open to all who are qualified to use its facilities and dedicated to giving everyone who has qualified a chance to practice as a barrister. The lack of division within the Bar suggests that there is every reason to believe that such a system will continue to serve the people of Northern Ireland as it becomes more religiously and ethnically diverse.

8. The Bar subsidises all new entrants to the Bar of Northern Ireland for a period of 7 years. This is to allow all barristers an opportunity to practice as independent barristers and to earn a reputation and to develop a practice. Practitioners at the Bar realise that it is in the long term interests of the Bar as a profession that it attracts the best talent available and that that talent be given an opportunity to flower, if the Bar is to continue to offer the best legal service possible to consumers in Northern Ireland.

9. The Bar, as previously stated, invested £20m of its own money in a new Bar Library building and also in:-

a) additional Library staff and expertise;

b) additional IT staff and expertise;

c) IT and books;

d) cataloguing the decisions of the Northern Ireland Courts and Tribunals.

As a consequence any member of the Bar has the ability to retrieve a vast database of legal research and a wide range of legal material. Furthermore every member of the Northern Ireland Bar has access to a fully qualified member of the Library staff who will carry out any independent research in any area of law which he or she requires. This provides the Bar with unparalleled access to an enormous range of legal materials. This has only been made possible because of the very heavy capital investment of the Bar. This investment has enabled the Bar to give increased assurances to Judges, Magistrates and Chairpersons of Tribunals that those appearing before them are in a position to fully advise the Court on the appropriate legal authority or legislation.

10. There can be no doubt that the Bar Library delivers the most cost effective service for independent practitioners and further is a source of employment for over 31 staff and contract employees.

THE WORK OF THE NORTHERN IRELAND BAR

11. The Bar of Northern Ireland is involved in a wide range of work. There are now over 600 barristers approximately 10% of which are QC’s. They are engaged in work involving the criminal courts, civil money damages disputes, consumer disputes, commercial disputes, chancery disputes, family disputes, Industrial Tribunals, public and administrative law and also provide expert opinions in complex matters of law.

12. Self evidently these involve important matters of public interest. It matters what happens to children when parents divorce or break up; it matters that those who appear in the Crown Courts have proper representation to ensure fair trials; it matters that those who are guilty of crime are properly prosecuted; it matters that those who suffer personal injuries or financial loss have effective remedies in our Courts; it matters that those who are involved in disputes with their employers have proper representation in Industrial Tribunals and it matters that the citizen can challenge the State in matters of public and administrative law. The Bar believes that these important matters can best be resolved by the use of an independent Referral Bar in which the judiciary and the public has confidence. These matters are fundamental to the rule of law in any democratic society.

13. The Northern Ireland Lawyers Pro Bono Unit is a joint venture sponsored by the General Council of the Bar of Northern Ireland and the Law Society of Northern Ireland.

The objective of the Unit is to provide free legal advice and representation in deserving cases where Legal Aid or other funding is not available and where the Applicant is unable to afford legal assistance.

The Unit has been set up as a company limited by guarantee and is registered as a charity.

Although lawyers have in the past often given their services without payment to those with worthy causes, both branches of the legal profession in Northern Ireland have joined to establish a formal scheme whereby those without funding can obtain representation and advice from solicitors, barristers and QC’s.

The Management Committee consists of representatives from both the Bar Council and Law Society. The Committee has made it clear, however, that the scheme is no substitute for a properly funded Legal Aid system which must remain the principal method for assisting those with insufficient means to obtain legal services.

The cases most likely to meet the criteria of the Pro Bono Unit will be appeals, applications for leave to appeal, judicial review applications, specific steps in proceedings, tribunal hearings and advisory work. Cases that raise a specific issue of principal or test cases will be particularly welcomed. In many instances, requiring the degree of skill, specialisation and knowledge unique to the Bar.

Over 100 barristers have volunteered for this scheme which, as described above, formalises and complements the long tradition of barristers individually acting without a fee in deserving cases.

TRAINING TO GET TO THE BAR AND AFTER

14. Each member of the Bar attends at the Institute of Professional Legal Studies for one year where they undertake intensive training in advocacy skills. Subsequently one year’s pupillage is completed at the Bar Library under the supervision of a Master who must have more than seven years experience. The first 6 months of their pupillage is unpaid. Thereafter, training continues with further advocacy training, Bar organised conferences and seminars as well as Continual Professional Development requirements being mandatory. The Bar is governed by an extensive and detailed Code of Conduct, ensuring the interests of the client and duties to the Court are paramount. Conflicts of Interest are expressly prohibited in representation of clients.

SPECIFIC ISSUES OF CONCERN TO THE COMMITTEE FOR JUSTICE

A) Legal Aid Funding

15. The Bar fully accepts that the severity of the present recession and the limit of public funds available to the Court Service mean that over the next few years public monies available for Legal Aid work will be reduced. The Bar agrees with the Court Service that it is imperative that Legal Aid fees paid to the professions are aligned in accordance with the money available by way of public funding. To this end it has been engaged with negotiations with the Court Service since January of this year in an attempt to agree a fee structure for payment in Crown Court cases in Northern Ireland. The Bar does not support the current proposals from the Court Service which have firstly introduced a new VHCC scheme and which propose to introduce a new Graduated Fee Scheme and reform of the level of representation in the Crown Court. These proposals are based on the English and Welsh scheme which has proved so problematical in practical application and given rise to dilution of the quality of representation by reason of fees paid. The Bar believes that the necessary savings can be made without the extreme measures being currently proposed. The object of the discussions with the Court Service has been to achieve this objective. To this end, the Bar have proposed a bespoke system tailored specifically to address this jurisdiction.

In general terms the major difficulty that has arisen in relation to payments in criminal defence cases arises from the unforeseen impact of the VHCC scheme under the 2005 Rules. It was not anticipated that there would be as many cases that would qualify for payment under the Scheme and this has resulted in a disproportionate level of payment for these types of cases. For this reason the Bar has made detailed proposals to the Court Service to address the VHCC issue. These have included VHCC cases together with an extension of the “standard fee” to accommodate such cases. The Bar believes that its proposals afford the necessary budgetary savings required. The particular merits of the scheme being proposed by the Bar are that it is easy to administer and will provide budgetary predictability and certainty under a comprehensive “standard” scheme.

16. When addressing the issue of legal aid fees the Committee should not lose sight of the importance of ensuring that there is effective representation for Defendants in the Crown Court. The Committee should be careful to consider the consequential effects of fee reductions. The introduction of the relevant rates in England & Wales has caused significant difficulties. Large numbers of the smaller solicitors firms are going out of business. Barristers have not been briefed by the larger firms who are doubling up on the fees to strengthen their own position and thus many criminal chambers have reduced their commitment to criminal work to the extent that the junior criminal Bar is under serious threat. The obvious consequence has been a steady erosion of advocacy standards. This has been recognised by a recent PAC report. In its 9 th report of session 2009/2010 it stated:-

“The Committee was concerned about the impact upon the quality of publicly funded advocacy of an increased number of solicitors conducting defence work at the Crown Court. They were also concerned about the impact of this increase and use of solicitors in the Crown Court would have upon the long term sustainability of the Junior Bar”.

The concerns of the PAC should be shared by those responsible for the delivery and maintenance of the administration of justice in Northern Ireland and we should do everything to ensure that we do not copy and repeat the mistakes of England & Wales. Most recently, at a symposium at the Middle Temple in London chaired by Lord Justice Laws, Master of the Rolls, reference was made to the ‘catastrophic effect’ fee reductions were having on the Criminal Bar leading to Chambers collapsing and the most able seeking to find work outside of criminal law. To avoid a similar scenario arising in Northern Ireland, what is required is a “bespoke” system for Northern Ireland which provides the necessary balance between budgetary requirements and an effective system of justice.

17. The Bar is hopeful that it can come to an agreement with Court Service so that a joint proposal can be made to the Justice Committee and to the Minister in respect of legal aid payment for Counsel in the Crown Court.

REFORM OF LEGAL REPRESENTATION PROVIDED BY WAY OF CRIMINAL LEGAL AID AT THE CROWN COURT

18. The Bar is concerned about the proposal in relation to a Defendant’s right to have more than one Counsel in serious cases. In the introduction to its consultation document the Northern Ireland Court Services states that:-

“It believes that a Defendant’s right to have more than one Counsel must be maintained in the interests of justice and the right to a fair trial requirement”.

The Bar Council agrees.

19. The simple and obvious way to ensure that this is the principle that governs the decision for the Judiciary to determine whether to grant authority for two Counsel in a case is to say so in the relevant legislation i.e. simply to provide that two Counsel may be authorised “where the interests of justice and the right to a fair trial require it”. However not only does the legislation provided by the Court Service omit to express this principle as the key criterion but it is drafted in such a way as to ensure that (i) this is NOT the operative criterion at all and, (ii) the authority for two Counsel can – indeed must - be refused in certain categories of cases whether or not the interests of justice and the right to a fair trial do in fact require representation by two Counsel.

20. The Bar has submitted a detailed paper on this issue which is attached to this submission at Appendix Two.

21. The Bar also believes that it is a mistake to remove the power to grant a certificate for two Counsel from the Magistrate’s Court. It is believed that this will have the unintended consequence of resulting in subsequent delay because if a certificate is only granted at arraignment stage by a Crown Court Judge much of the necessary preparatory work carried out by Senior Counsel will not be done, at this early stage, and it is likely that delays will arise from the late certification for Senior Counsel.

22. The detailed paper at Appendix Two, which is attached to this submission sets out in detail the difficulties which the Bar has in relation to the proposals. The matter can be resolved by the introduction of a clause which enables either a Magistrate or a Judge to grant a certificate “where the interests of justice and the right to a fair trial require it”. It is difficult to see how anyone could reasonably object to such a proposition given that this is the very principle upon which the Court Service presents its proposals.

The Court Service also seek to introduce legislation whereby two Junior Counsel can appear in a case together instead of a QC and a Junior Counsel. This is a half baked cost cutting exercise and one which is a ‘cut and paste’ provision taken from England & Wales. The purpose of two Counsel in a case is to ensure the specialism and experience of a QC is brought to bear in the most important cases ably assisted by a Junior Counsel.

LEGAL AID FOR MONEY DAMAGES CLAIMS

23. As is the case with regard to representation by two Counsel the Bar has submitted a detailed response to the proposals by the Northern Ireland Legal Services Commission in relation to the Access to Justice Order which deals with access to civil legal services for members of the public [see Appendix Three]. It is the Bar’s belief that the proposed funding criteria do not satisfy the fundamental requirements of the Legal Services Commission to provide access to civil legal aid services. However the paper does look at alternative approaches to this issue and the Bar is involved in constructive discussions with the Legal Services Commission to ensure that members of the public do have access to civil legal services. The conclusion of the money damages aspect of the Civil Funding Code is as follows:-

a) the priorities must be reviewed to allow inclusion of money damages cases. The application of the same priorities as England & Wales fails to recognise a difference in the requirements of access to justice in the different jurisdictions;

b) whether those priorities are reviewed or not the proposed criteria are unrealistic and will have the effect of withdrawing legal aid in the majority of money damages cases;

c) under the proposed criteria clinical negligence cases will almost all be excluded;

d) the Bar believes that it is essential to put in place a scheme which will allow persons of limited means bringing money damages claims to have access to the Courts;

e) the removal of legal aid will lead to a great increase in the number of personal litigants which will have a seriously detrimental effect on the administration of the Courts.

LEGAL AID FUNDING FOR FAMILY LAW CASES

24. The Bar welcomes the recognition of family law cases as high priorities within the scheme proposed. The Bar also welcomes various levels of funding being available to cover disputes prior to the issue of proceedings and in particular to cover the use of mediation.

25. The Bar has recently been engaged in a lengthy negotiation process with the Court Service in relation to a payment in family law cases and are pleased that this matter has been resolved and the current scheme appears to be working well.

The removal of children from their biological parents for a short period of time or permanently is an action taken by the state to safeguard the best interests of the child. This action must be determined as justified and proportionate hence the balancing act and duties performed by the Family Courts. There has always been a tension within the mechanics of the Children (NI) Order 1995 between assisting parents in an attempt to rehabilitate the child back to their care and securing a long term placement for the child. In 2006, the Department of Health issued a document entitled “Adopting the Future” for consultation. Family lawyers participated in the consultation process but we are still awaiting the outcome of this process. This delay has caused some frustration to family lawyers who are aware of the changes made in England and Wales as a result of the Children and Adoption Act 2002 and it is unclear whether Northern Ireland will adopt a similar legal approach or leave the current legislation as it stands.

PUBLIC PROSECUTION SERVICE

26. The Bar has concerns that the PPS intends to increase the use of internal advocates for the prosecution of cases and also appears set on introducing a Graduated Fee Scheme for the payment of independent Counsel it retains. The Bar anticipates that these matters will be discussed further with the PPS before any of these schemes is implemented. Very similar considerations apply to these issues as apply to the question of the provision of Legal Aid for Defendants in criminal cases. It is imperative that we in Northern Ireland avoid the pitfalls and mistakes that have arisen from similar schemes in relation to the PPS in England. This has been recognised by the Attorney General for England and Wales recently citing the additional cost implications of employing ‘a corps of in house advocates’ in England & Wales. Most recently, the Attorney General for Northern Ireland has expressed his support for the Bar Library system and the necessity to ensure the maintenance of a strong and independent referral Bar.

SOLICITOR ADVOCATES

27. Rights of higher audience have been sought by the Law Society for Solicitor Advocates, despite the grave potential for conflicts of interest to arise in publicly funded cases. This should be of grave concern to all who have a role to play in ensuring only the highest quality of representation is offered in the administration of justice.

28. The Bar is particularly committed to ensuring that it attracts young members of the highest quality and ensures that they have a future in this profession. Advocacy is an art that requires constant practice and honing. In a common law jurisdiction where there is a premium on oral advocacy the Bar Library system is best placed to ensure that those practising advocacy gain the necessary experience, training and support. The huge cuts proposed in relation to public funding work has a disproportionate effect on the younger members of the Bar and will if implemented have a devastating effect on the pool of junior barristers for publicly funded work. This in turn is likely to result in large numbers leaving the Bar and will have a detrimental effect on the profession generally. In order to sustain a viable profession, which of course provides the gene pool for members of the Judiciary the Committee for Justice needs to consider the impact of severe cuts in publicly funded work for the professions.

29. Notwithstanding the difficulties encountered the Bar Council is determined to maintain the high standards provided by the Bar over many years which it considers to be clearly in the public interest. The Bar is non discriminatory in the fullest sense of the meaning. It is open to all those who are properly qualified. It has been tried and tested in the most troubled times. It has resisted polarisation and sectarianism to offer independent legal services to all citizens in Northern Ireland regardless of their creed, class, colour, religion or sex. We believe that the advantages of the Bar Library system are in the public interest.

FUTURE OF THE BAR

30. Notwithstanding the many challenges faced by the profession the Bar Council is confident that a strong independent Referral Bar will remain in this jurisdiction and believes that this is manifestly in the public interest. The Bar welcomes the recommendation in the Bain report to the effect that there remains an important role for an independent Referral Bar in this jurisdiction and hopes that in due course the Department of Justice will pass the necessary legislation to deal with the issues raised in the Bain report.

APPENDICES

1. Background document.

2. Submission on representation.

3. Submission on the Public Funding Code.

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