Debate contribution: Justice Bill: Consideration Stage

Debate contribution by Mrs Naomi Long on 22 June 2026.

MLA

Mrs Naomi Long

Party at the time

Alliance Party

Date

22 June 2026

Type

Debate contribution (made as a minister)

Business

Executive Committee Business

Heading

Justice Bill: Consideration Stage

Assembly identifier

Official Report component 5639094

Read the official Assembly record

Text

Thank you, Mr Deputy Speaker. Before I speak about what we are debating, it is important that I set out what we are not debating. We are not debating the value of legal aid. We are not debating access to legal aid being essential. We are not debating that we need a sustainable system. None of that is up for debate. We all agree that those are essential. People should have access to justice and it should not be fettered by a lack of finance. The legal aid system provides people in need with proper legal representation, and so it should — and so it will, and has, on my watch. We are not talking about cutting legal aid. As I pointed out, the legal aid fund has grown, some would argue exponentially and unsustainably, over recent years, so there is no comparison with what happened in England and Wales where the legal aid budget was slashed in 2014-15 because that is not what we have done. We are also not discussing how frequently we will review fees because we have already had a discussion with the Law Society and the Bar Council to do that every three years, and that is already in train. Those are all things that have nothing to do with the amendment, which is about bringing a significant portion of expenditure — £30 million — back within the purview and scrutiny of the Assembly and my Department. It is not necessarily the case that it will be less. The point was made, "Well, what would you have done with the uplift from the taxing master?". I do not know because I was not party to all the data, and that is the point. However, we should be party to all the data. We should know how figures are arrived at. We should be able to scrutinise, challenge and question them because that is our job. We are here to represent the public, the people who pay their taxes and expect us to ensure that when money is spent, it is spent on the right thing, that it is fully accountable and transparent and that it provides value for money. I did not think that the amendment would create such concern. It would place on a primary legislation footing powers that we already have in the Department, so it is not a major departure or a complex piece of work that is being rushed through. We have those powers. We are putting them in primary legislation to provide clarity on the role that would be taken by the Department, so I am surprised that it has received such a lukewarm reception.

To be clear, the taxing master is currently responsible for assessing the costs claimed by legal representatives in respect of civil proceedings in the High Court and civil and criminal proceedings in the Court of Appeal. I will come back to appeal courts, because it is important that people understand what we are talking about when it comes to brief fees. At the conclusion of an assessment, a certificate of taxation, which details costs payable by the paying party, is used and issued to the solicitor. Where the costs are to be met by legal aid, the certificate goes to the Legal Services Agency, and payments are made. Back in December 2024, I announced the enabling access to justice reform programme, which included an upfront commitment to reform the taxation process to ensure greater accountability, transparency and budgetary control. My Department does not have endless financial resource, so I have to be able to control the money that is within my purview and ensure that it is properly used. Initially, we intended to deliver that reform in a phased manner by proceeding type, with High Court bail applications, judicial review, and criminal Court of Appeal proceedings to be reformed by the end of the current mandate, and to move forward on reforming other proceedings in future mandates. New frameworks will have to be developed, with legal aid fees and rates being set alongside the administrative processes that would allow the LSA to assess and process claims for payment. It is not unusual for Departments to set out their powers in primary legislation and then to make regulations; in fact, that is the only way in which it can be done. We cannot make the regulations without the regulation-making power. However, it is really important that people understand that we have the power; what we are trying to do is put it on a clearer footing. In April 2025, a decision of the taxing master was taken to increase the solicitor hourly rate and counsel interlocutory fees by over 50% — not 15% but 50% — concerns were raised by the Bar and the Law Society about the removal of the taxing master from legal aid assessments, and there were calls from the Law Society to expedite taxation reform in relation to family and children order proceedings. We therefore decided to change our approach. The Department then sought to expedite reform by seeking to change the system as follows: the Department will set by legislation the fees and rates and the arrangements that the taxing master will apply when assessing costs to be paid out of the legal aid fund. That will ensure that fees and rates are subject to legislative scrutiny by the Assembly — the Justice Committee — as well as proportionate economic appraisal through value-for-money and affordability measures as is required for the expenditure of public money. That is not challenging. We have to provide a business case for police pay, prison officer pay and any other expenditure in the Department that changes, so that does not seem unreasonable, unusual or novel. Hourly rates will be introduced for barristers in line with article 47 criteria, and counsel will be required to document the time spent on and the nature of the work carried out. Again, for professional people, that is not a big deal. If I were to pay someone to do work for me, I would want to know how many hours they spent on it and the nature of the work that they sent out. I would certainly want to know that before parting with my cash. Equally, on behalf of the public purse, I want to know what that looks like. An hourly rate will be set for solicitors that, in line with the statutory criteria that have been set out, will cover the cost of providing the service and include a fixed, reasonable profit margin. This is not about trying to put solicitors out of business. We recognise that there are overhead costs to be factored in. The Member for North Belfast talked about dentistry. I will declare an interest before I speak further, because, as he knows, my husband is a dentist. There is an issue with NHS fees, for example, not allowing practices a profit margin. They do not even allow the overheads to be factored in. Things such as staffing costs are not remunerated as they ought to be, which is why so many people have departed the NHS system. Billing information will be captured on the legal aid management system. That means that the LSA will be able to build a comprehensive dataset on the time spent on and the nature of the work. That will be accessible for internal and external audit and for accountability mechanisms, so we will be able to manage our budget better, and it will inform future policy development such as the development of standard fees and rates, which we have talked about. Part of the challenge that we have had in resolving the dispute with the criminal Bar is lack of evidence because of the departure from "time and line" billing in previous reform. The amendment clarifies that any fees and rates and associated administrative arrangements set by the Department in secondary legislation can be applied by the taxing master when assessing costs to be paid out of the legal aid fund.

That neutralises the risk of the scheme being undermined by the taxing master exercising a discretion outside the regulations. It also reduces the risk of legal challenge if the Department makes a remuneration order to set legal aid fees and rates for proceedings in the High Court and Court of Appeal to be applied by the taxing master. It enables the Department to increase transparency, accountability and budgetary control, all in relation to legal aid expenditure subject to taxation, and it expedites reform, as the taxing master is retained in an assessment role, negating the need, at this stage, to establish any assessment function in the LSA. It brings a uniform approach to the composition of bills submitted by barristers and solicitors and so removes the lack of transparency around uplifts and brief fees as well as the risks of escalating and unpredictable costs. The amendment simply clarifies the wide powers conferred by articles 12(3) and 24(3) of the 2003 Order to make provision about remuneration to providers of services under legal aid that can apply to anyone, including the taxing master, who is assessing the remuneration to be paid. Currently, hourly rates for solicitors include significant percentage profit uplifts for all bills. We have been able to prove through data that, on average, that rate is around 64%. That is a significant profit account. We are not here to make life difficult for people who are working hard and providing a vital service, but we want to have transparency. The new system will have an hourly rate set for solicitors that covers the cost of production and allows for reasonable profit. Currently, barristers submit a brief fee with no breakdown. I asked the Member for Foyle how a brief fee is composed, and the Member did not answer the question, because, despite the Committee asking the Bar for details of how brief fees are made up, nothing that was sent to the Committee provided any clarity on that. It is a completely opaque process, and, from my perspective —.

I will, yes.

Again, that is not the same point. What the Member was just talking about and what she said earlier is that she had tried to get clarity from the Department on what the regulations would look like. We have not engaged the taxing master on the regulations. Why would we? We are not doing the regulations. That will come later. We engaged with the taxing master, but remember that the taxing master has changed. I suggest, therefore, that, before the Member gets too indignant, it may simply be that they met one taxing master rather than the other. The taxing master changed midway through the process, and I assure the Member that my officials have met the taxing master. My question was about whether the Bar Council was able to explain to Members in a way that was open, transparent and accountable how it calculates a brief fee. The answer to that is clearly "No", because it was not able to provide that to the Department either. That is not acceptable. It is really important that we are able to understand how brief fees are calculated and that the process is transparent and accountable to the public, because it has a significant impact on the expenditure on legal aid. It also ensures that the data that we have will be more helpful in the future, which is important, because I agree with the Member for Foyle that we need more regular reviews. I have to say that it is difficult to do reviews every three years when the Assembly is suspended every three years for some reason or other. All Members have to take some responsibility for the fact that that has not perhaps proceeded in the way that I and others would have wished. It is not just the Department that has concerns about the current situation. Those challenges were reflected in the Public Accounts Committee's report in 2019, in which concern was expressed that a large proportion of legal aid expenditure did not come under the purview of the Department and lacked any scrutiny by the Assembly. The Northern Ireland Audit Office has also raised concerns about how the process was not open to proper scrutiny. We have provided data to support the reforms.

At the minute, we have no oversight whatever of about 30% of our legal aid expenditure. If any other Minister else were to come to you and say, "There is £120 million in my Department, and I do not know where 30% of it goes or how it is calculated", you would rightly say that that Minister was being derelict in their duty. I am telling you that we do not and cannot —.

Yes.

Absolutely. We are doing this so that not only the Department but the Assembly will have proper oversight of where public money is spent. That is vital. There is some suggestion that we are trying to cut legal aid or work some kind of a move around it, so let me make this clear: taxed expenditure has increased by 160% from £23·2 million in 2020-21 to £37·7 million in 2023-24. That is 60·2% of the overall increase in legal aid spend during the period. People may think that the Bar will say, "Yes, let's reform it so that we can no longer go down the taxation route, which is more lucrative, and we will go for time and line, which may, depending on the figures, be less lucrative", but it will not agree to that.

I will in a moment. The Bar has a vested interest in the system. It is not simply a group of professionals offering advice. It is offering advice in the same way as people would argue that MLAs should not be involved in setting their own salaries. I would argue that the Bar has a conflict of interest if it is telling us how to pay barristers and what the fee structure should be. We need to be wary. It was interesting that the Member for North Belfast picked up on the fact that the Bar said that, if there were incentives for getting cases done more quickly, it might be able to do something about it. Surely, the incentive is that that is justice — that is the incentive. In many cases, justice delayed is justice denied. The fact that people so openly said that they could finish earlier if they had some incentive to do so suggests a degree of heel-dragging that has to do with the fee structure rather than the necessity of delivering justice in a particular case. I will give way.

With respect, we have the evidence. There was a 160% increase from 2020 to 2024. That was 60·2% of the overall increase in legal aid spend. We know that the cases that go through taxation are seeing greater uplifts than the rest of the legal aid system. The majority of cases do not go through taxation; they are not eligible for taxation. That is to the detriment of the rest of the legal aid system. We have the evidence to back that up. Between 2016-17 and 2023-24, the average barrister bill for a taxed case increased by approximately 200% when adjusted for inflation, but we cannot identify why. The bills and the brief fees are so opaque that there is no way of telling where the increased costs came from and whether they were justified. The increase for solicitors when adjusted for inflation was a somewhat more modest 7%. That is 7% versus 200%. Is it an attack on judicial independence? No, it is not. I get mocked regularly for saying that I respect the independence of the various parts of the justice system, and I do, because I believe that an independent judiciary is essential to the functioning of justice. When it comes to making decisions in the courts, sentencing, judicial reviews and all those things, it is right that the judiciary should not have to come cap in hand to me, as Justice Minister, or to listen to me opining on the role that it plays. Therefore, I will not attack judicial independence. The taxing master will continue to assess the costs claimed, but my Department has a legal obligation to manage its budget and to ensure that value for money is achieved when public money is spent.

There are precedents for the taxing master to apply hourly rates in that way; it is not a departure from normality. For example, under previous Crown Court remuneration frameworks, hourly rates were set by the Department for the taxing master to apply when assessing the costs for solicitors and barristers involved in what were termed "very high cost cases". There is a precedent for it. We are not introducing it with no experience of operating the system. We are not doing something that we have not done before. We are simply trying to recover the accountability and scrutiny that have been lost in recent years. Members said that the decision to increase the hourly rate for solicitors and barristers' interlocutory fees had not happened for 10 years, so we could have seen it coming: that is absolutely true. However, no regard was paid to the impact on the public purse, nor was any consideration given to value for money. There was no public consultation. I have to consult publicly in order to increase the fees for any of the professions. There was no engagement with any democratically elected representative in the House about the decision to have a 53% uplift, and no statutory or regulatory impact assessment was carried out. The Member spoke passionately at the beginning of her speech about the need for the rural impact to be taken into account and for people's human rights to be protected. None of that is protected under taxation, where no statutory or regulatory impact assessment is done. That would be done in this place were the amendment to go through. I am offering in the amendments the protections that, the Member says, she wants. Given the potential implications for the public purse of any increase, officials attended the working group but in an observer capacity only. The officials confirmed with the chair that the Department could not be bound by or endorse any outcome of the review. I have heard representations that it was an evidence-based and transparent process, but that is interesting in two respects when it comes to transparency. Initially, the Bar queried why we needed such a working group at all. The Bar did not want a working group, and it had "significant difficulty understanding" why the DOJ would be involved at all in applying inflationary increases. Even though it is DOJ money, the Bar could not understand why the Department was involved. The Bar, instead, highlighted the established practice of simply applying inflationary increases to interlocutory fees. Secondly, the terms of reference for the working group do not mention brief fees. Brief fees were not considered by the working group and were therefore not subject to any transparent, evidence-based approach. Therefore, it was not transparent, and it was not accountable. I have a finite budget, and funding decisions are rightly scrutinised by the Committee and the Assembly. My decisions about legal aid fees are subject to affordability considerations and economic appraisal. However, in the case of the most recent increase to the rates and fees by the taxing master, the decision was subject to none of that. All our public services will ultimately be affected if we continue to allow that to happen. In setting rates and fees, we are simply asserting budgetary control. The taxing master will continue to be free to make the changes that they wish to make. I am genuinely surprised at the level of opposition or scepticism on a minor amendment that clarifies that remuneration arrangements made under existing powers conferred by the articles in the 2003 Order would apply to anyone in assessing remuneration to be paid from legal aid. It is not a matter of curtailing judicial discretion, and it does not do away with the taxing master — we are retaining the taxing master — but it is a restatement of our power to implement a structure for how fees should be calculated. It is important to restate that at this time. Remuneration orders will be made under articles 12(3) and 24(3) to set out the legal aid rates and fees to be applied by the taxing master when assessing costs. It will simply give us more budgetary control and scrutiny.

The Audit Office said that legal aid frameworks should be reviewed to ensure that value for money is achieved. The Public Accounts Committee said that expenditure subject to assessment by the taxing master needed to be brought under the purview of the departmental accounting officer. This is the only way in which we can do that. We have evidence — this is important — that legal aid expenditure on appeals from the Crown Court to the Court of Appeal, which is assessed by the taxing master, is significantly higher than corresponding costs paid by the PPS under its fee framework, through which it sets the fees and rates paid to prosecution barristers. Is it value for money if barristers paid out of the legal aid fund are paid on average nine times more than their equivalent who is representing the PPS? If two barristers with the same qualifications are acting in the same case, the one paid from the legal aid fund gets, on average, nine times more than the one paid by the PPS. KCs are paid, on average, six times more than their Public Prosecution Service equivalents. We talk a lot about equality of arms, and part of the point of legal aid is to have equality of arms, but how can we have equality of arms if one side is being paid, on average, nine times the fee of the other side? Are we getting value for money if we see no economic appraisal and no budgetary approvals or scrutiny, unlike the case for everything else to do with legal aid, of a 53% increase in solicitors' hourly rates? Is that value for money? Can we stand over that? I do not think that we can. Legal aid expenditure on barristers in civil cases subject to taxation has tripled since 2015. We spend more on legal aid than we ever have done and rightly so. Provisional figures for 2025-26 show expenditure at almost £121 million, but £30 million of that, which is subject to taxation, should and will be subject to the same scrutiny as the other £91 million. That is incredibly important. If the House rejects inserting the clarification from the 2003 Order, so be it. We will, however, still need to move ahead with reform, as articles 12(3) and 24(3) provide us with the statutory powers to set remuneration arrangements for all legal aid expenditure, including for the High Court and the Court of Appeal. I look forward to working with Committee members and the wider Assembly when they come to scrutinise the new remuneration framework for legal aid expenditure that is subject to taxation. Members have not had an opportunity to do that before, and I believe that they should. The approach to reform addresses concerns from the Bar and the Law Society about removing the taxing master, addresses concerns from the Audit Office and the PAC about transparency and value for money and combines accountability with judicial expertise. I believe that we are strengthening governance but not compromising independence, and I encourage Members, before we vote on the amendments next week, to consider carefully what I have said about the escalation in taxed work and the escalation in fees. We have to ensure that there is clarity about how taxpayers' money is spent, and we need to prove to the public and our constituents that value for money matters.

4,016 words. Text as published by the Northern Ireland Assembly.

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