Debate contribution: Enabling Access to Justice

Debate contribution by Mrs Naomi Long on 11 March 2025.

MLA

Mrs Naomi Long

Party at the time

Alliance Party

Date

11 March 2025

Type

Debate contribution (made as a minister)

Business

Ministerial Statements

Heading

Enabling Access to Justice

Assembly identifier

Official Report component 4855229

Read the official Assembly record

Text

With permission, Mr Deputy Speaker, I wish to make a statement on the enabling access to justice programme. When I launched the programme in December, I committed to moving at pace to ensure the viability and sustainability of the justice system and, more importantly, to provide better services and supports to our citizens. I set out a route map so that we can better assure ourselves that we are addressing the fundamental principle of access to justice and protecting the most vulnerable. That is why we were elected, and that is my role as Justice Minister.

I am pleased to report that there has been a generally positive response to the programme. Work is now in train, and we are making good progress. The programme delivery plan is out for consultation, and we are taking forward work in parallel to deliver on plan objectives. That includes ensuring that those providing public legal services continue to enjoy fair, proportionate and timely remuneration. High-quality advice and representation are critical to accessing justice, so I committed to early action on fees to ensure that the system is viable and that the vulnerable are protected. I made that commitment, and I have followed through on my pledge. I am pleased to report that we are on track to introduce a significant 16% uplift in civil, family and criminal legal aid fees in May. Delivering that has been no small undertaking and is no small step, so I am extremely disappointed that, as I provide the update, victims, witnesses and defendants are enduring yet another month of damaging service withdrawal by the Criminal Bar Association (CBA). I know that many Members will be equally concerned. This is now the fifth month in which CBA action has continued in parallel with real progress on reform; the fifth month since I met representatives of the professional bodies to discuss the reform programme; the fourth month since I formally launched a programme in the Assembly committing to urgent action; the third month since I published the delivery programme plan and associated consultations; the second month since I appointed His Honour Judge Burgess to lead a working group to identify other potential changes to legal aid fees; the second month since preliminary engagement on the working group began; and the month in which the working group started to meet. CBA representatives are participating in the working group, which I very much welcome, but I cannot overstate my disappointment and frustration that service withdrawal continues. The scope of the action being taken by the CBA has, thankfully, reduced, but be under no illusion: the serious damage that the action is having on the justice system, individual victims, witnesses and defendants is ongoing. The impact of withdrawal on individuals is not mitigated by the number of cases involved. It is all too easy to reduce the narrative to numbers and costs: the number of cases affected; the cost and value that individuals attach to their services; the costs that we can afford to meet and sustain; and the likely cost of recovering from the service withdrawal, which, ironically, will impact on the resources that I have to improve the underlying system. There is no doubt that those numbers and costs are an important part of the story, but what is more important and what should be first and foremost in all our minds are the people — your constituents and mine — whom the system is here to serve and protect. The purpose of legal aid is twofold: to protect the vulnerable and to ensure that justice is served. We cannot currently say that that is being achieved. Service withdrawal means additional delay, and additional delay means that defendants, whether guilty or innocent, must wait longer for their case to be resolved. Delay means additional stress, anxiety and often trauma for many victims and witnesses, and it must be recognised that there are some victims and witnesses who are particularly vulnerable and are suffering acutely. Delay means a greater risk of witness attrition and of people withdrawing their cooperation. It means a greater risk of victims not receiving justice and a greater risk of justice coming a little too late for some. All in all, it means a greater risk of harm to the public and a risk that the innocent remain in custody longer than is absolutely necessary and that the guilty go free. That is not idle speculation or pessimism but a very real possibility. It is therefore disappointing that those currently withdrawing services appear not to attach the same priority to those concerns as others throughout the justice system. I take the opportunity to pay tribute to the Public Prosecution Service (PPS), to its management and prosecutors and to the victim and witness care unit in particular. I also pay tribute to Victim Support, to the staff of the Northern Ireland Courts and Tribunals Service (NICTS) and to the judiciary for their efforts to mitigate the impact of the CBA action on victims and witnesses. I understand and appreciate the enormity of the efforts involved. The work that they are doing stands as testimony to their very personal commitment to ensuring that victims and witnesses are supported and get the justice that they deserve. I know that the withdrawal has also impacted on the work of solicitors, who, at times, have shared some of the CBA's concerns but, unlike the CBA, have engaged positively and constructively with the Department and have continued to serve their clients throughout this very difficult period. I thank them for doing so. As Members will be aware, some solicitors who provide immigration and asylum advice have recently withdrawn from doing that work, but, unlike the CBA, they continue to engage directly with us on their alternative proposals. We have already committed to taking on board evidence produced by research on fees for immigration and asylum cases in England and Wales, and we continue to work with those solicitors, the Law Society, the Solicitors Criminal Bar Association (SCBA) and others on local reforms. In general, they are also committed to continuing to deliver public legal services in the interim while we develop a better way forward. That commitment recognises the steps that I have taken to improve the system. Whilst I understand why the CBA has had a grievance over many years, it is more difficult to understand why it appears not to have taken cognisance of the multiple actions that are in train. As I made clear when we met, I want to ensure that they are fairly paid for the work that they undertake. We have set out not only a significant uplift in fees — at 16% — but a mechanism whereby their outstanding concerns can be addressed on the basis of evidence. It is therefore difficult to understand the motivation and expectations regarding the impact of the continued withdrawal of services. I have taken every opportunity to listen and address concerns where it has been appropriate and within my gift, but the ask seems to be ever-changing and often unrealistic. I will take a few moments to set out for Members the work that we have done to address those concerns at each stage. As Members will be aware, the CBA initially called for the fundamental review of criminal legal aid to be published and for the recommended uplift in fees and the reform programme to be progressed. When they withdrew their services for December, they knew that those actions were imminent, and I delivered via a statement in the House. The CBA then linked the service withdrawal to full implementation of the fundamental review, an immediate uplift in fees and the abandonment of my proposed approach to cases left on the books. Again, I responded insofar as I was able. I delayed the publication of the programme delivery plan and associated consultations to consider their representations, and, in light of their concerns, I reprioritised the delivery plan. Notwithstanding our view that the material significance for barristers' income is low, I rescheduled consideration of the issue of cases left on the books to later in the mandate. As with all other proposed actions, the policy would, in any event, always have been subject to detailed stakeholder engagement. However, if other parts of the reform package render specific action in that area unnecessary, I am happy to be informed by that. As I have been clear from the outset, the delivery plan details issues that will be explored, not final policy decisions. I have also made every effort to ensure that fees are enhanced at the nearest opportunity: May 2025. Members will understand, as should members of the profession, that practical, legislative and governance constraints mean that an uplift could not practicably be implemented any sooner. The uplift is as recommended by the independent fundamental review. Whilst it only considered the criminal Bar, I decided that the uplift should be applied to the entirety of the Bar and the profession. That is not an insignificant step. It will mean an additional investment of £9·8 million per annum, and, following our very constructive engagement with the Law Society and SCBA, I have gone further than Judge Burgess anticipated and backdated the uplift to 1 December, when I reached my decision to increase fees. Such a move is unprecedented in the legal aid framework, where uplifts have always been prospective, not retrospective. However, I am of the view that it is justified and reasonable to apply the uplift from the point at which I accepted the recommendations, in that an expectation of improved remuneration had been created, albeit not a legal entitlement. Notwithstanding the very damaging effects of the withdrawal of services on victims and witnesses, I have extended the backdated uplift to all members of the Bar. I did not want the members of the Bar who continue to work and deliver services to suffer any negative consequences from the CBA's action. Again, that is not an insignificant step. It represents an additional £3·5 million in fees over and above the £9·8 million annual uplift. I am also taking steps to ensure that benefits are realised as quickly as possible by introducing interim payments. There are a few areas where Judge Burgess has acknowledged that further evidence is required to implement change, so I have appointed him to chair a working group to that end. I do not believe that Judge Burgess would have taken on that role were he in any doubt as to my commitment to delivering on his recommendations and engaging with integrity in the work. Subject to emerging evidence and departmental analysis, the terms of reference for the group anticipate that further fee changes might be effected alongside the 16% uplift in May. The review is otherwise being implemented as recommended, so there is no reasonable cause for the CBA withdrawal of service to continue, but it does, as its ask has changed yet again. As the CBA put it to me most recently, having previously asked for the Burgess review to be implemented, the 16% uplift is now deemed not enough; in fact, it is "paltry". It is, in the CBA's view, not commensurate with the value that its members attach to their work. They want more. However, what the CBA has not specified is how much more, nor has it provided a robust evidence base for us to assess whether any further increases to any aspects of its members' fees are necessary and appropriate. Members will appreciate that such an unevidenced ask is untenable. I cannot act without evidence, even if the most vulnerable are being used as leverage. The only evidence base that we have is the Burgess report and the work done to support its implementation. The Bar and others had the opportunity to submit evidence and make representations to Judge Burgess during the 10 months of the review, and they did so. Members will appreciate that I cannot go beyond those recommendations unless further evidence supports that decision. Crucially, the working group that was established presents yet another fair and reasonable opportunity for the CBA and others to provide any additional evidence that they have. I have been clear in my commitment to reasonable and proportionate remuneration for work undertaken, but the case needs to be made, and it needs to be robust. We are all aware of the acute pressures on all of our public services, whether in Justice or across the rest of the Executive. We are all aware of our duty to ensure that resources are used appropriately and fairly. I place on record that I am pleased that the CBA has taken the opportunity to join the working group and my personal commitment and that of my Department to continued constructive engagement, but, as Members will, no doubt, agree, victims and witnesses cannot suffer the consequences of the action indefinitely. I had hoped that, in the absence of a full return of service, the CBA might agree a derogation in the withdrawal to allow at least some of the cases assessed as involving the most vulnerable to proceed. However, despite having agreed in principle, the first specific request for a derogation in a case where there was a real, tangible and indisputable risk to the victim was refused. That individual and the others involved in the 17 cases that were identified as critical and that, we hoped, might benefit from the derogation continue to be at risk of significant harm and of not receiving the justice that they deserve. That simply cannot continue in the longer term. I know, as will each of you, that we will now need to consider alternative models for the delivery of services currently provided by the criminal Bar. That is not a step that I wish to take, nor is it one that I would undertake lightly, but it is difficult at this juncture to see another way. I do not know how the evolving position of the Criminal Bar Association will develop over the next few weeks. I sincerely hope that it will lead to it not only engaging with the working group constructively but restoring full service delivery at the earliest juncture. However, whatever the outcome and whatever its analysis, I am clear and have clearly communicated that I have done all that I can to meet the concerns and to deliver a mechanism to take forward any remaining concerns. There are no further steps that I can take in the absence of robust evidence. Victims, witnesses, defendants and the wider public deserve better than to be caught up in a dispute over remuneration. Collectively, we have a moral and ethical duty to ensure access to justice, to ensure that the system can function, to ensure that resources are being used to best effect and to ensure that the vulnerable have the protection and support that the system is meant to provide. The need to look at alternative delivery models may impact on the capacity to deliver on other reform. I will take time to consider sequencing when the consultation on the delivery plan closes. Whilst that is unfortunate, it may be unavoidable. However, what will not change is my commitment to reform at pace, and I will continue to prioritise the changes that will ensure sustainability, support early resolution and ensure that citizens have access to services that address their wider needs at the point of access. As I have said before, we have an opportunity to reset the framework for justice delivery. That is why I launched the programme for reform. That is why I have devoted resources to delivery at pace, and, as I said at the outset, we are making good progress. The programme delivery plan and the fee proposals are out for consultation. I am progressing the practical, logistical, legislative and financial steps necessary to uplift fees in May 2025, backdated to September 2024. I have appointed Judge Burgess to chair the working group to look at other areas for reform where he identified that the evidence was not available. We also continue to engage with stakeholders to shape their actions under the reform programme to improve the system and the type and nature of the support and services that we provide and to scope access interventions that will enhance service at the point of access, increase self-efficacy and enhance the use of alternative dispute resolution.

That represents significant progress over a relatively short period of time, and I intend to continue with that at that pace.

I trust that Members and Committee for Justice colleagues will continue to support me in that endeavour and will help us to take constructive action to drive that change in order to ensure a fairer, more accessible, proportionate, responsive and cost-effective system that places citizens at its heart. I commend the statement to the House.

Thank you, Mr Deputy Speaker. First, I am not at war with the Criminal Bar Association. I have said that I am seeking to work constructively with it to meet its concerns. I have done that progressively over recent months, and I will continue to do so in the months ahead. However, there are lines that I cannot cross. I have a responsibility for managing public money, which is inescapable, and certain legislative procedures have to be followed. I cannot circumvent those, and nor would I wish to. Secondly, to be clear, the Criminal Bar Association is not the most vulnerable in our society. Its clients and the victims who are waiting for its services are the most vulnerable in our society, and it is their cases that are being affected by the withdrawal of services. I have made clear my desire to resolve the dispute. I have done so not only in words but in actions. We now need to see an end to the withdrawal of service, full engagement with the working group and, I hope, a constructive resolution to any outstanding issues through that mechanism. That is best for the Criminal Bar Association and the legal profession, and, most importantly for me as Justice Minister, it is best for our citizens.

We are still at the very early stages, but I am clear that we cannot continue with a situation such as when I met the Bar most recently, when it said that it was, for example, unwilling to take on category A cases, category D cases involving multiple defendants or retrials because of the complexity of that work. Those are some of the most serious and involved cases, but they also involve some of the most vulnerable victims and witnesses. Therefore, it is not sustainable for us to be in a situation where that service is not provided. Work is at a very early stage in scoping what the alternatives might be. I have to be clear, however, that my preference is not to deflect resource from the programme of work that we set out in the enabling access to justice reform programme. I want to see the Criminal Bar Association at the table with everyone else as we work our way through what is a difficult issue. I believe that the 16% uplift is justified, but I have also been clear that there are other areas to consider. When I engaged with solicitors through the Criminal Bar, for example, they highlighted issues around the Police and Criminal Evidence Act (PACE) and the cost of fulfilling their requirements under PACE. That is something that we are now evidencing. If we can pull that evidence together in time, we will include it in the uplift in May, which may go beyond 16%. However, it has to be evidence-based, transparent and robust. If it is, I am not averse to considering it.

3,300 words. Text as published by the Northern Ireland Assembly.

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