Access to Justice Review Northern Ireland

The Discussion Paper

November 2010

Contents

Introduction and Methodology

Access to Justice – Guiding Principles
Table 1

Criminal Legal Aid
Table 2

Civil Legal Services
Advice, the voluntary sector and partnership
Alternative Dispute Resolution
Family and Children
Money damages cases, negligence and personal injury
Administrative law
Civil legal Aid – other issues for review
Exceptional grant of legal aid in civil cases and inquests

Service providers, Quality and Regulation
Partnership and a mixed model
Quality
Regulatory Framework
Solicitor Advocates

Structures for delivering legal aid and developing policy on access to justice
Current arrangements and previous reviews
 Table 3
Structural Issues for review
Policy on Access to Justice
The Civil Justice Reform Group

Options for making further budgetary savings

Annex A

Annex B

Introduction and Methodology

1.1   This is a discussion document designed to scope and stimulate discussion on the Review of Access to Justice in Northern Ireland announced by the Minister of Justice on 13 September 2010.  It develops themes and issues identified in the agenda-setting document published alongside.

1.2   Our terms of reference are to review legal aid in Northern Ireland and to develop proposals to improve access to justice which will:-

  • ensure that defendants have adequate representation to secure the right to a fair trial in criminal cases;
  • in civil cases provide adequate, appropriate, efficient and cost-effective mechanisms for resolving legal disputes, whether by action in the courts or otherwise;
  • examine previous review work to determine what recommendations and proposals remain relevant;
  • examine what the scope is for alternative approaches and structures as set out in the Minister’s speech of 7 June 2010;
  • make proposals for an efficient and cost-effective system of administration to develop policy and support access to justice;
  • make proposals to achieve value for money in the use of public funds within the available budget, including identification of possible future savings to reduce the legal aid budget.
  • The terms of the Minister’s announcement and an extract from his speech of 7 June are attached at Annex A as they provide useful background on the thinking behind the establishment of the review. Members of the review team are Jim Daniell, Angela Ritchie and Catherine McClements.

    1.3   As part of our initial scoping work, we have spent the first few weeks in discussions with representatives of the legal profession, the voluntary sector, government departments, public agencies and other interested organisations and individuals. The review is potentially a very wide ranging exercise and we wanted to identify the key issues and establish some parameters at an early stage. We have produced this document with that in mind and to help focus discussion, but also to give public representatives and interested organisations and individuals the opportunity to draw to our attention any other relevant matters that should be addressed. It is important to stress that the inclusion of issues and ideas in the document that follows does not mean that they are necessarily emerging findings or favoured options; it is simply that they merit discussion and consideration.

    1.4   In order to help readers place what follows in context a brief statistical analysis of the volumes and costs of legal aid is included at Annex B.

    1.5   We will be examining the issues in depth between now and the end of January 2011 with a view to pulling together an interim report for the Minister during February 2011. There will be the opportunity for further consideration before publication of the final report by early summer of 2011. In developing ideas and proposals, we will take account of the experience of current arrangements in Northern Ireland, written submissions, views expressed at meetings, previous reviews, existing research and the experience of other jurisdictions. While it is important that solutions are developed that are appropriate to Northern Ireland’s situation, there is much to be learned from the experience of others and there will be visits to England and Wales, Scotland and the Republic of Ireland; documentation from other jurisdictions will also be considered. We will keep in touch with progress of the fundamental review of legal aid in England and Wales, announced by the Lord Chancellor on 23 June 2010 and which, we understand, is due to be the subject of a consultation document to be published during November 2010.

    1.6   Written comments and submissions should be made to the review team by e-mail or in hard copy to the following address by 31 January 2011;

    Access to Justice Review Team
    Mays Chambers
    73 May Street
    Belfast BT1 3JL

    Tel: 02890 446842
    Fax: 02890 446828
    E mail: reviewteam@courtsni.gov.uk

    Any requests for meetings should be made within the same timescale.

    This document will be made available in a range of alternative formats.  Requests should be made to the Communications Group on 028 9044 8594 or communicationsgroup@courtsni.gov.uk

    1.7   When completing the interim or final report we may wish to quote from or refer to written submissions or points made to us at meetings. If anyone would prefer that their points are made in confidence, please ensure that this is clearly stated in the submission or at the time of the meeting.

    Access to Justice – Guiding Principles

    2.1   In his speech on 7 June 2010, David Ford MLA, the Minister of Justice, said:- “The objective of the review will be to go back to first principles, and to decide how best to help people secure access to justice”. He reiterated that objective when emphasising in his oral statement to the Assembly on 13 September 2010 that the review was to be more fundamental than an exercise in cost control. This part of the discussion document outlines some of the principles and considerations that might guide the work of the review and on which we will elaborate in the final report.

    2.2    The aspiration of “fair and equal access to justice” contained in the Legal Services Commission mission statement seems a reasonable starting point. It assumes a broad interpretation of access to justice, referring to the ability of all, regardless of means, to access advice and secure fair and equitable solutions to justiciable issues and disputes, whether through the courts, tribunals or other properly established mechanisms. This aspiration does, however, need to be tempered by a recognition of the realities of working within finite resources.

    2.3   The review will take account of the Human Rights imperatives. Article 6 of the European Convention on Human Rights and associated case law provides for the right to a fair hearing before an independent tribunal established by law in criminal proceedings and in proceedings where civil rights protected by the Convention are at issue. Protections in criminal proceedings include the right to free legal assistance where the defendant does not have the means to pay for it and where the interests of justice point to the need for representation. Other provisions of the Convention such as the right to life (Article 2, for example in the context of inquests), the right to liberty (Article 5) and the right to privacy and family life (Article 8) will impact on aspects of the review. There are relevant provisions in other human rights instruments to which the UK is committed such as the International Covenant on Civil and Political Rights (Article 14) and the UN Convention on the Rights of the Child; and full regard will be paid to domestic human rights and equality legislation.

    2.4    Effective access to justice for all is an essential characteristic of a modern democracy committed to the rule of law where citizens are protected against arbitrary decision-making and abuse of state or economic power. That points to decisions on granting legal aid being taken against objective criteria, independently of government or sectional interests. In addressing legal aid, the review will pay particular attention to safeguarding the interests of the vulnerable and to its role as part of a strategy for addressing social and economic need and tackling poverty.

    2.5   Equality of arms is a guiding principle in the sense of both parties in criminal and civil proceedings having access to similar levels and quality of legal assistance. However, we will also take account of the potential for a grant of legal aid to upset this balance if access to public funds enables one party to pursue proceedings against a non-legally aided party beyond the point at which a reasonable outcome could be secured. Incentives that encourage legally aided clients and their lawyers to take account of the costs of publicly funded proceedings as they would if they were funding them privately will be considered.

    2.6   Proportionality is a consideration. Is the scale or impact of the remedy being sought in a case sufficient to justify the possible cost to the legal aid fund and might there be other less expensive ways of resolving the matter?

    2.7    Economic considerations and the interests of those involved are served by services and procedures that secure the prevention and early resolution of disputes and problems and, where appropriate, keep them out of the courts. The availability of advice services (including those provided by the voluntary sector and non lawyers), effective complaints mechanisms and other forms of alternative dispute resolution procedures such as mediation can play an important part and will be addressed in this review.

    2.8    The availability of a high quality, efficient and independent legal profession providing comprehensive services that are accessible to all is an integral part of access to justice. While the review will lay emphasis on early resolution of issues and examine the contribution that can be made by the voluntary sector and non lawyers, it remains the case that the ability to seek the resolution of issues before the courts provides the ultimate safeguard; and that is dependant on an independent judiciary but also lawyers able to operate effectively at all levels. This means bearing in mind the implications of decisions on matters covered by this review for the present and future legal market place.

    2.9   Avoidable delay in the criminal and civil justice processes is a serious barrier to access to justice for all those whom the system is meant to serve whether they be victims, witnesses, defendants, parties to a dispute or others who might be affected by proceedings (notably children in family cases). Case management and efficient working methods are part of the response to this and it is important that there is a timely decision-making process on legal aid matters. Moreover legal aid policy and remuneration systems can help incentivise the avoidance of unnecessary delay.

    2.10 Value for money will be a theme running throughout the review with a focus on cost and reasonable remuneration and on the quantity and quality of returns secured for the outlay. 

    2.11 It will be necessary for publicly funded services covered by this review to operate within the available budget. Expenditure on legal aid since 2005/06 and budgetary provision for the current year until 2013/14 is shown in the table below (with more detail on the components of expenditure provided at Annex B).

    Table 1

    Year 05/06 06/07 07/08 08/09 09/10 10/11 11/12 12/13 13/14
    £m 63 75 78 90 104 105 85 85 79

    The expenditure for 2009/10 and the forecast spend for 2010/11 includes substantial payments for very high cost criminal cases from previous years due to the clearance of a backlog that had developed. The figures for 2011/12 onwards represent the provision agreed as part of the financial settlement associated with the devolution of justice. Forecasting spend in a demand led environment where there is a long lead in time before actions and decisions impact on the level of spend is not easy, but the outcome of this review will need to be achievable within the reduced provision of £79m for 2013/14.

    Criminal Legal Aid

    3.1   The availability of criminal legal aid in Northern Ireland is currently governed by Articles 28 to 31 of the Legal Aid Advice and Assistance (NI) Order 1981. They provide for a grant of legal aid in a magistrate’s court, on appeal to the County Court, and in the Crown Court in circumstances where the court considers the defendant to be of insufficient means to pay for legal representation and that it is in the interests of justice that legal aid be granted. While an applicant for legal aid is required to provide the court with a statement of means, unlike in civil cases, there are no prescribed limits on income or capital governing the grant of criminal legal aid. In a magistrates’ court legal aid is grated in respect of a solicitor and may only include representation by counsel in the case of an indictable offence where the circumstances of the case are sufficiently grave or difficult to warrant an increased level or representation; counsel is invariably assigned in the Crown Court, where in serious cases two may be assigned.

    3.2    The “interests of justice” were not defined in the 1981 Order but successive Lord Chancellors have endorsed what are commonly referred to as the “Widgery criteria” which are that:-

    When the relevant part of the Access to Justice (NI) Order 2003 is commenced, these criteria will be given statutory authority through Article 29.

    3.3    Legal aid is available to enable persons questioned at police stations under PACE provisions to secure the services of a solicitor at the place of custody or to secure telephone advice. In addition those who are financially eligible may use the legal advice and assistance (green form) scheme to seek advice from a solicitor on any matter relating to the criminal law of Northern Ireland.

    3.4   The following table gives an indication of the volume and costs of criminal legal aid work in 2009/10. The volume figures for the courts relate to certificates granted in that year while the cost includes some payments made in respect of certificates granted in previous years.

    Table 2

      Volume Cost (£m)
    Crown court 2,291 44.70
    Magistrates’ Courts 29,805 14.80
    PACE 15,661 2.08
    Advice on criminal matters 888 0.74

    The costs for the Crown Court include £28m for very high cost cases. Of the expenditure on legal aid in magistrates’ court cases, some £2.4m was spent on counsel’s fees.

    3.5    For the purposes of this review, unless points are raised with us, we do not propose to call into question the scope of criminal legal aid as defined in the Widgery criteria underpinning the “interests of justice” test or the provision for advice and assistance for those held in police custody. The current coverage appears to us to be fair and just and ensures that in criminal matters Northern Ireland meets its human rights obligations, in particular Article 6 of the European Convention and the finding of the European Court of Human Rights in the case of Salduz v Turkey (concerning access to a lawyer from the point at which a suspect held in custody is subject to questioning). That does however leave a number of issues to be addressed including remuneration for the legal profession, means testing, levels of representation and the locus of decision-making on eligibility for criminal legal aid.

    3.6    In parallel with this review the Department of Justice, through its agency the Northern Ireland Courts and Tribunals Service, is pursuing a number of reforms to criminal legal aid which are key elements of the plans to reduce expenditure on legal aid to a level consistent with future budgetary provision (see Table 1 above). The reforms are as follows:-

    3.7    Given the importance of urgent action to bring legal aid spend within budget, we do not wish the review to impede progress towards implementation of the initiatives outlined in paragraph 3.6 above. However, we will want to work with the Courts and Tribunals Service and the Legal Services Commission to examine the financial modelling that underpins the proposals, not least because of the possible implications for other areas of spend. We would also be interested in views on some of the principles that underlie a fair and affordable approach to remuneration in the straitened financial circumstances in which public services are operating, for example:- reasonable but not excessive remuneration taking account of what solicitors and barristers might expect to earn if they worked full time on criminal legal aid cases; broad comparability with remuneration in similar jurisdictions and with that paid by the Public Prosecution Service (not a direct link but significant disparities might call into question equality of arms); the need to attract quality and expertise of representation at the highest levels and sustain supply into the future; wherever possible, standard fees that are straightforward to administer and incentivise efficient practices; affordability.

    3.8    So far as the means test is concerned, decisions will be taken following research. It will be necessary to demonstrate that the scale of savings justifies any increased administration costs associated with applying the means tests – and that the administration of the scheme will not introduce complications or delay into the processing of cases brought by summons or charge.  The arrangements will need to be demonstrably fair and should not call into question the ability of defendants to secure representation in cases where this is justified by the interests of justice. At Crown Court level in particular, where costs will normally be greater, there will be an issue about whether the reasonable legal costs of those who are acquitted but who have funded their own defence should be reimbursed. In England and Wales (where means testing in the magistrates’ and Crown Court has produced significant savings) there is a system of contributions to legal costs for those who can afford them at Crown Court level, refundable in the event of acquittal but where further contributions can be sought in the event of conviction.

    3.9   At present the key decisions concerning the grant of criminal legal aid are taken by the judiciary. The possible introduction of a new approach to means testing and the trends in other jurisdictions suggest that this is an area to be reviewed. We will be interested in views on whether decisions on financial eligibility, the interests of justice test and representation by counsel (in the magistrates’ court) are best made by:-

    On financial eligibility, our recommendations will take into account the role of the Legal Aid Assessment Office1 and whether it is possible to streamline or centralise procedures for assessing means and/or confirming the presence of passporting benefits (which result in an automatic granting of eligibility). More generally the considerations to be taken into account in considering who should be responsible for taking each of the three categories of decision include:- suitability for cases proceeding by way of summons or charge; avoidance of bureaucracy and delay; administration costs; expertise and experience; consistency of decision-making; whether there are concerns about the judiciary, in making decisions on legal aid, being asked to address matters that will subsequently be the subject of a trial. 

    3.10 On representation by counsel in magistrates’ courts, we may wish to explore the criteria by which the circumstances of a case are deemed sufficiently grave and serious to warrant increased representation. One other option would be to make provision in the remuneration arrangements for enhanced payment to solicitors in such exceptional cases, giving them the option to undertake additional work themselves, use a solicitor advocate (from their firm or elsewhere) or secure the services of a barrister. However, such an approach might increase the number of applications for enhancement and have an impact on administration costs. It would not of course be appropriate for solicitors to seek certification for representation by counsel or enhanced payments for purposes of managing their caseload.

    3.11 We would welcome any views about the workings of the arrangement for securing advice for persons held in custody under PACE in police stations or elsewhere. An individual being held by the police is asked if he/she wishes to have access to a solicitor of his/her choice, whether through the presence of the solicitor at the police station or by telephone. In the event that such assistance is required but the individual is unable to identify a solicitor of choice, we understand that it is usual practice for the custody sergeant to have a list of solicitors from which a choice can be made. We understand that there is also a longstanding arrangement whereby the Legal Services Commission maintains a rota of duty solicitors with two years post qualification experience in criminal matters, available to provide advice and assistance in police stations or courts in Belfast; but this does not apply outside the Belfast area. The provision of police station advice can be of considerable importance for the satisfactory progression of a defendant’s case and it is open to question whether it is reasonable to expect the police to maintain lists of solicitors to whom those being held in custody can be referred. Should it be a task for the Legal Services Commission, or perhaps the Law Society, to ensure that such lists are up to date and available in police stations throughout Northern Ireland? Also, given the specialist and critical nature of police station work, is there a case for requiring some form of accreditation or relevant post qualification experience for police station work, at least for those solicitors appearing on any list or rota?

    3.12 Early guilty pleas can reduce the costs of legal aid even in a standard fee environment, where different levels of fee are set depending on the stage at which the plea is entered before or after the trial has begun. They also reduce delay, reduce court costs and bring benefits to victims and witnesses through reduction of stress and inconvenience. Article 33 of the Criminal Justice (NI) Order 1996 requires a court when passing sentence to take account of the stage in proceedings when an offender stated his intention to plead guilty and the relevant circumstances; and there is case law on what this means in terms of reduced sentences. It is the responsibility of solicitors to ensure that their clients understand the consequences of an early plea. There is similar provision in England and Wales; but the legislation there is supplemented by sentencing guidelines2 providing a sliding scale of the extent of reduction from one third for a plea at the earliest opportunity to a tenth when the plea is at the door of the court or after the trial has begun. The Coroners and Justice Act 2009 in England and Wales requires the court to follow any relevant sentencing guidelines unless it is contrary to the interests of justice to do so.  We would welcome views on whether there is a case for strengthening the incentives to encourage early pleas in Northern Ireland or whether the interests of justice are best served by maintaining the current approach.

    3.13 Our terms of reference require us to examine the scope for alternative approaches and structures with particular reference to finding solutions to problems outside the court setting. In the context of our review, this may be seen primarily as a civil justice issue. However, we note that the Justice Bill contains provisions for broadening the range of offences for which fixed penalties can be issued and for enabling prosecutors to issue conditional cautions with rehabilitative and/or reparative conditions attached. In the future there may be scope for building on this approach, for example along the lines of the system of “direct measures”3 and fiscal fines4 employed in Scotland. While many of the offences that would be covered by the diversionary options envisaged in the Justice Bill would not attract legal aid if they went to court, we would welcome views on the availability of information or advice (from an independent source) on the implications for an individual of accepting (or not) a diversionary disposal.

    3.14 Legal Aid is available for diversionary and court ordered youth conferences, elements of the successful restorative justice arrangements administered by the Youth Justice Agency. Again there may be scope for growth in this area, especially in diversionary referrals that avoid the need for court proceedings. The take-up of legal aid in these cases is, we understand, relatively low and, given their nature, the involvement of lawyers in the process itself should not in normal circumstances be necessary. However, as with other diversionary measures5, we would ask whether there is confidence that procedures are in place to ensure that, prior to the proceedings, the subject understands their implications and the available options. This would be a particularly important consideration in the case of any community based schemes.

    3.15 On a number of occasions people have mentioned to us a problem area that can transcend criminal and civil law, that of disputes between individuals or groups at neighbourhood level. These may range from problems over boundaries or high hedges through anti-social behaviour to criminal damage, threats of violence and the nastiest forms of hate crime. Concern has been expressed that when these matters are reported to the police the underlying seriousness of the situation is not always recognised, allowing the matter to escalate; and there are questions over whether funding applications to the civil courts for injunctions in neighbour disputes is a proportionate use of legal aid funds or an approach likely to produce lasting solutions. We would welcome views on this and in particular on the possible use of advice and/or mediation services to resolve disputes before they escalate and to help identify issues that might need more formal intervention.

    3.16  It is of critical importance that the rights of defendants are properly safeguarded and that this is not represented as inimical to the interests of victims who themselves are of central importance within the criminal justice system. There is an inter-agency task force on victims operating under the auspices of the Criminal Justice Board and on 21 October 2010 the Department of Justice issued for consultation a draft Code of Practice for Victims of Crime. We suggest most issues concerning the interface between victims and the criminal justice system would be best pursued through that consultation. However, if there are matters being covered in the Access to Justice Review that affect the interests of victims we should be keen to ensure that this dimension is properly taken into account and would welcome comments on that basis.

    Civil Legal Services

    4.1   Articles 3 to 8 of the Legal Aid, Advice and Assistance (NI) Order 1981 enable financially eligible persons to secure legal advice and assistance, short of representation, from a solicitor on any point of Northern Ireland law. Articles 9 to 14 provide for legal aid to be made available to those who are financially eligible (the means test) for purposes of preparation for, and/or representation in, court proceedings where there are reasonable grounds for taking action (the merits test). A small number of categories of case, such as defamation, are excluded from the ambit of legal aid. Solicitors and barristers are reimbursed by the Legal Services Commission for services provided through legal aid, with provision for contributions from those legally aided clients who can afford them.

    4.2   In 2009/10, about £1 million was spent on 9100 acts of advice and assistance (this excludes advice given in police stations under PACE provisions and other advice in relation to criminal charges). Some £33.4m was spent on civil legal aid, over 65% of that sum being devoted to family and Children Order cases.

    4.3    Work is well advanced on major reforms to the civil legal aid system. The Access to Justice (NI) Order 2003 (modelled closely on similar legislation in England and Wales) requires the Legal Services Commission to develop a Funding Code setting out the criteria for granting civil legal aid and prioritising the types of case to be funded; it also specifies a slightly wider range of cases to be excluded from legal aid, such as land disputes and matters relating to business law. The Commission has issued consultation documents on the Funding Code, most recently in 2009 addressing the criteria and procedures to be adopted, together with associated impact assessments. Other key reforms being pursued in parallel are:-

    4.4   The review team is working on the basis that many of the provisions of Access to Justice Order and associated initiatives will continue. The effect of much of the Order is not to place legal aid and access to justice in a straitjacket but rather to provide a flexible framework within which major change can take place if that is the outcome of this review. For example, the Order permits the Commission to fund legal aid and assistance through payment for specific services (as now) but also through contracts, grant aid, establishing bodies to provide legal services, providing services through its own directly employed staff or through any other means considered appropriate6. The research on financial eligibility and work on the statutory charge will carry on. Aspects of the Funding Code may need substantial amendment in the light of this review and, had devolved justice arrangements been in place at the time, a different approach might have been adopted to achieving the desired ends of flexibility, predictability and properly targeted services (there is no funding code in Scotland or the Republic of Ireland). Nevertheless there is no question that change to the current legal framework is necessary and it would make sense, at least pending decisions on this review, to proceed on the basis that the Code will be implemented, possibly in an amended form.

    4.5    One further reform currently being processed is the Courts and Tribunals Service consultation issued in March 2010 on increasing the jurisdictional limits of Northern Ireland’s County Courts from £15,000 to as much as £50,000; consequential increases are suggested for the district and small claims courts. The consultation has now closed and a final decision is awaited. The thinking behind this proposal is very much in line with the principles supporting this review, in particular proportionality and securing affordable justice; and there is no reason for the existence of this review to cause progress on changes to jurisdictional limits to be delayed. It might, however, throw into sharper relief comments that have already been made to us by representatives of claimants and defendants about the desirability of more case management and better arrangements for exchange of particulars of the case by both sides prior to listing in the county courts.

    4.6    The rest of this section on civil legal aid will be devoted to identifying issues and options that will be explored during the remainder of the review. In addressing these matters we will take account of the findings of the Legal Needs Survey undertaken for the Commission in 2006 and the research currently being undertaken into unmet legal needs of children and young people. We will discuss with the Legal Services Commission whether there would be sufficient added value to justify commissioning an update to the 2006 survey.

    Advice, the voluntary sector and partnership

    4.7   The Minister’s speech on 7 June 2010 emphasised the need for choice in the sources of legal help available to those in need and talked of “bringing law to the people” through advice centres and legal clinics. In addressing the Advice Service Alliance on 20 November 2009, the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, talked of the strengths of the voluntary sector being that it works “close to the ground” and “can build expertise on issues which are not viable for private law firms”. We will wish to explore how a partnership between voluntary and private sector providers might be achieved and locally accessible advice made available in a cost effective way. In doing so we will take account of evidence that problems often arise in clusters, sometimes without an easy dividing line between the legal and non-legal; and that they are the type of issues that affect the most vulnerable and disadvantaged disproportionately such as debt, housing, welfare benefits etc.

    4.8   There are models in other jurisdictions such as the Community Legal Centres in Australia and the Community Legal Advice Centre pilots in England and Wales. In Northern Ireland there is an infrastructure to build on, including advice centres run under the auspices of the Citizens Advice Bureau and Advice Northern Ireland, while organisations such as the Northern Ireland Law Centre and Housing Rights Service provide specialist help to a level where we understand that private firms of solicitors will approach them for assistance. The presence of Housing Rights advisers at the Royal Courts of Justice and Laganside Courts to give “on the day” help for people facing repossession or other crises is an example of what can be achieved by specialist voluntary sector providers. With appropriate Law Society waivers, specialist and voluntary organisations can directly employ solicitors able to offer client services. We will be interested in views on whether in certain specialist areas voluntary (or private) sector providers might be as well placed as solicitors in private practice to offer advice and representation.

    4.9   We will wish to consider with departments (including DoJ, DSD, DHSSPS and DETI) and local councils whether it is possible to work together with the voluntary sector and the legal profession to develop an advice and help model that might, for example, have the following characteristics:- a network of advice centres providing general advice and triage, able to refer clients to specialist advice (which might be other voluntary or private sector organisations) and only where necessary (provided that financial eligibility requirements are met) on to solicitors in private practice to resolve serious legal issues. The issues raised in the DSD consultation documents “Opening Doors” (2007) and on “the number and location of Area Advice Centres” (2009) would be relevant. This would involve a co-operative approach on the part of government departments, local councils, the Legal Services Commission and other funders to build on services and an infrastructure much of which is already in place.

    4.10 The type of model outlined above could have implications for the legal help concept contained in the Funding Code, in particular raising the issue of how to determine the circumstances when it would be appropriate to fund the provision of advice for a client who makes a direct approach to a solicitor. We are conscious that the amount of form filling and checking involved in the current green form procedures may seem disproportionate given the sums of money involved, although we will have to take account of the requirement to ensure regularity and propriety of expenditure. We will also look at the role of telephone advice and help operating within the same type of funding model as that outlined in paragraph 4.8 above. Experience in England and Wales suggests that telephone advice receives a very high satisfaction rating – and there is already operating in Northern Ireland under a contract awarded by DETI a telephone advice line for problems relating to debt as well as the Children’s Law Centre advice line, CHALKY.

    Alternative Dispute Resolution

    4.11 Our terms of reference and the Minister’s speech of 7 June point us clearly in the direction of “finding solutions to problems outside court” with “less emphasis on fighting cases inside court”. An effective system of early advice which can prevent problems and disputes from arising in the first place (see paragraphs 4.7 to 4.10 above) is part of this strategy; and, where public authorities and private undertakings are concerned effective compliance and complaints systems have a key role. However, once a situation arises where an issue cannot be resolved by agreement without outside intervention, ADR can, in the right circumstances, provide an alternative to taking a case through the courts that benefits all of the parties to a case.

    4.12 ADR comprises a range of methods, including negotiation, mediation, collaborative law, conciliation and arbitration; and it is applicable in different types of dispute, whether family, money damages, neighbour, business disputes etc. For purposes of this review we propose to concentrate on those types of intervention where publicly funded assistance may need to be available, such as mediation and collaborative law (the main difference between mediation and collaborative law is that in the former case an independent mediator is appointed to secure an outcome agreed by the parties while in the latter the representatives of the parties help them work towards a mutually agreed settlement). We will also take into account the availability in some areas of community based schemes that might sometimes offer a quicker and cheaper way of pre-empting and resolving local issues such as neighbour disputes than going through the courts.

    4.13 The benefits of mediation (and collaborative law) if employed in the right cases include:-

    However, we will take account of the danger that, if case selection is not right, costs and delay can be increased with failed mediation having to be followed by the full court process.

    4.14 Mediation and collaborative law are not new to Northern Ireland and have been promoted through such bodies as the Law Society’s Dispute Resolution Service, Family Mediation (NI) and the Association of Northern Ireland Collaborative Family Lawyers, as well as Mediation (NI) in contexts other than family. However, there is now a strong move, endorsed by the judiciary, to develop such services to a level where they have a major impact on access to justice. Issues that this review will want to consider with interested parties include:-

    4.15 In considering how to develop mediation we will take account of developments and experience elsewhere. The Legal Services Commission in England and Wales spent £14.4 million on funding family mediation in 2009/10 and estimates that, with 70% of mediations reaching a full or partial settlement, there is an overall saving to the Fund of some £10 million – in total some 20% of private law family disputes in that jurisdiction with the potential to go to court are resolved via mediation. The Law Reform Commission of Ireland is due to publish a report and draft legislation on alternative dispute resolution before the end of the year and we will be discussing the implications and possible lessons for Northern Ireland with staff of the Commission in Dublin. It is also noteworthy that there is federal legislation promoting alternative dispute resolution in the United States7 and an EU directive on the subject insofar as it relates to cross border disputes between parties in different states of the Union8.

    Family and Children

    4.16  As stated in paragraph 4.2 above Children Order and matrimonial cases account for a sizeable proportion of the volume and spend associated with legally aided cases in the civil sphere. The number of legal aid certificates granted for Children Order cases heard in the Family Care Centre doubled between 2006/07 and 2009/10, in large part a reflection of a more interventionist approach by social services following the baby P case. The Children (NI) Order 1995, modelled on English legislation, places the welfare of the child as the paramount consideration and, inter alia, provides the legal framework for care proceedings brought by the Trusts (public law) and residence and contact issues involving children (private law) in matrimonial disputes. Legislation dating back to 1980 and beyond covers divorce, separation and ancillary relief (financial arrangements), while the Domestic Violence (NI) Order 1998 provides for non molestation and occupation orders. We will take account of the workings of the Public Law Outline, an initiative introduced by the judges of the family division aimed at streamlining core processes to increase the focus on the needs of the child, targeting the effective use of expert evidence and identifying potential issues early in proceedings to facilitate effective case management.

    4.5    Key issues to be addressed during the review include:-

    4.18 We understand that the Legal Services Commission will shortly be commissioning research into the remuneration and consequential costs to the legal aid fund associated with Children Order cases. That research will address the issues identified in the first bullet above and we will collaborate with the researchers to avoid duplication. It would be helpful if that research is predicated on an appreciation of the input into cases required of lawyers in general, rather than using solicitors’ and barristers respective inputs as the starting point. Such an approach would lead to the development of a model based on fair remuneration for the legal services reasonably to be expected in particular types of case rather than on what branch of the profession provides them.

    4.19 The issues identified in the previous two paragraphs can be addressed on the basis that the law on family and children matters remains broadly as it is. However, this is an area where the content of the substantive law has a major influence on the nature, quality and costs of access to justice for the parties to matrimonial disputes and those involved in care proceedings. The civil legal aid spend per head in Scotland is significantly lower than in Northern Ireland. This is in part the result of the system there where cases involving children are for the most part determined on an inquisitorial basis by a Children Panel rather than the court, resulting in less emphasis on legal representation. The legal framework in Northern Ireland, as in England and Wales, is based on the use of adversarial, rather than inquisitorial, procedures once cases reach the court stage. Last month the Lord Chief Justice of England and Wales is reported as having given evidence to the House of Commons Justice Committee calling into question the suitability of the adversarial system for private law cases involving the custody of children.

    4.20    The Ministry of Justice in London has commissioned a review of family justice (public and private law cases) under the chairmanship of David Norgrove. This will have a particular focus on mediation, the processes involved in granting divorce and ancillary relief and how to reform the system in a way that enables the efficient resolution of issues in the best interests of children while protecting them and vulnerable adults from harm. We understand that the review is expected to produce an interim report in the spring of 2011 and we propose to keep in close touch with its progress. We will also examine the workings of the Scottish panel system for cases involving children.

    Money damages cases, negligence and personal injury

    4.21    Legally aided money damages cases for the most part involve claims for negligence, often in the context of road traffic accidents, tripping, medical treatment and accidents at work. A legally aided case results in a cost to the fund only when it is lost as in successful claims costs are invariably awarded against the other side. Over the past decade, there has been a significant reduction in the numbers of legal aid certificates granted for cases in all of the negligence categories other than clinical negligence where the volume has been steady. However, the average cost of those cases which do result in a charge to the fund has risen and preliminary research suggests that money damages cases cost the legal aid fund nearly £2 million in 2009/10. These costs include payments to lawyers but also to expert witnesses. It should also be born in mind that adjudicating on the grant of legal aid for money damages cases (over 1000 certificates were granted in 2009/10) and administering consequential payments into and out of the fund add to the running costs of the Commission.

    4.22 The proposed Funding Code, that has been the subject of consultation by the Commission, does not include money damages in one of the priority categories for civil legal aid. This means that the decision on whether to grant legal aid in particular cases where the client was financially eligible would be determined by applying a merits test based on consideration of the likelihood of success, the scale of damages likely to be awarded and the projected costs. Thus if prospects of success were assessed as very good (80% or more), legal aid would be awarded provided that damages were likely to exceed projected costs; but if prospects of success were moderate (50 – 60%) there would be no legal aid unless damages were likely to exceed costs by at least a factor of 4. The consultation document also provided that grants for investigative help, necessary in some cases to establish the prospects for success, would only be made where likely damages were in excess of £5000. All of this was designed to secure decisions on spending public money were proportionate and made as if the case was being funded privately.

    4.23    A major concern in the responses to the Funding Code was the limitation on investigative help which, along with application of the “prospects of success criteria” would reduce the likelihood of securing legal aid in lower value cases, especially those likely to be worth less than £5000; and it was pointed out that for the economically disadvantaged this was a significant sum.  A further consideration is the benefit to the public purse that accrues when the Compensation Recovery Unit is able to recover from the defendants, the costs of benefits paid to a claimant as a result of the event giving rise to the claim.

    4.24 In the past consideration has been given to establishing a Northern Ireland Alternative Legal Aid Scheme (NIALAS) for money damages cases whereby a ring fenced fund is created out of which lawyers’ fees and costs are paid where cases are lost; to replenish the fund, a proportion of damages paid in winning cases would be paid into it. This would require significant seed funding and the financial modelling demonstrated that the scheme, to be self-funding, would be dependant on the maintenance of a high percentage success rate. This in turn would be dependant on lawyers not “cherry picking” those cases with the best prospects of success and progressing them outside the scheme. More recently the Legal Services Commission has been discussing with the Law Society and Bar Council other forms of risk sharing whereby legal representatives would accept reduced fees from the Commission in cases lost.

    4.25 In England and Wales, most money damages cases (except clinical negligence) were taken out of the scope of legal aid in 2000. This followed the introduction of changes to the conditional fee arrangements applying in that jurisdiction whereby solicitors and barristers would be paid a success fee if the case was won (and costs paid by the other side). They were permitted to charge and claim in costs the success fee to compensate for the risk of losing the case and the cost of After the Event Insurance (ATE) whereby the client insured himself against costs from the other side in the event of losing the case (and against the cost of the insurance premium itself). In effect, if the solicitor took the case under these arrangements, on a “no win, no fee” basis, the client paid nothing and ran no risk of paying costs in the future.

    4.26 The conditional fee arrangements could be said to have enhanced access to justice in that they were applicable to all potential litigants regardless of means.  However, they added substantial costs to the system (ultimately born by losing parties, often insurance companies with implications for premiums and business costs) and have become associated with concerns about referral fees, claims management companies and so-called “ambulance chasing”. Costs have serious implications for access to justice, whether or not they affect the legal aid fund.

    4.27 In 2008 the Master of the Rolls appointed Lord Justice Jackson to conduct a review of civil litigation costs in England and Wales. The final report (December 2009) was wide ranging and comprehensive and has been well received by government; it would be worthy of detailed scrutiny in this jurisdiction to see where there might be issues of relevance to the Northern Ireland situation. However, for purposes of our review it is of immediate interest in its treatment of the conditional fee arrangements. Lord Justice Jackson suggested consideration of a conditional and contingency fee10 regime where success fees came out of (a limited proportion of) general damages rather than costs and no costs were allowable in respect of ATE; instead of ATE there would be qualified costs shifting whereby the claimant would not be liable for the other side’s costs in a case lost unless he behaved unreasonably. The financial regime would include incentives applicable to both sides to reach reasonable settlements at an early stage; and Lord Jackson recommended the development of software to facilitate negotiations of quantum. There remain issues about how to fund disbursements but we believe that this model should be examined as part of our review and will welcome views on its applicability here.

    4.28 In examining the options for money damages cases in Northern Ireland, we will be mindful of the principles outlined in section 2 of this document. We note the comments of the Northern Ireland Public Accounts Committee in its Report on the Management of Personal Injury Claims11 where, inter alia, concern is expressed about the costs of legal fees payable in respect of claims against the Roads Service. We are aware of concerns about a litigation culture but also note that the ability to take effective action in personal injury cases may have contributed to health and safety improvements that in turn have reduced the number of accidents and complaints.

    4.29 In money damages cases we will work with interested parties to address the following options, and any other that might be suggested:-

    We will also examine the workings of The Personal Injuries Assessment Board, the independent body established by government in the Republic of Ireland that processes all claims for personal injury other than those concerned with clinical negligence, charging the applicant 50 euros.

    4.30 In looking at the options outlined above we will consider whether clinical negligence cases (or perhaps the high value cases in this category) should be treated separately because of their particular complexity. We will explore with the relevant interest groups concerns on the part of claimants that early resolution of clinical negligence cases is impeded by an over defensive approach adopted by medical staff and Trusts (when sometimes only an apology is being sought); while there are suggestions from the other side that this can be the result of some over-aggressive solicitors firms using complaints processes as a means of gathering information to support litigation. There are also concerns about a practice of suspending the complaints process as soon as legal action is instigated. We will be interested in views on whether more of these cases could be resolved through complaints mechanisms, pre-court mediation or through complaints to the Ombudsman.

    Administrative law

    4.31 We understand that complaints of maladministration against public authorities falling within the remit of the Northern Ireland Ombudsman can include errors arising out of faulty procedures or failure to follow correct procedures as well as failing to give adequate advice; and the threshold of maladministration is lower than that which would apply in proving a case in court. Remedies include recommendations for an apology, financial payments and changes in policy or procedure to prevent a recurrence of the incident that is the subject of the complaint. The office is developing an early resolution of disputes service.

    4.32  The features of the Ombudsman’s procedures described in the previous paragraph suggest that this is an avenue that should be seriously considered by individuals in the health and other contexts seeking recognition of mistakes through an apology, a financial award and/or action to prevent them happening again. Proposals to reform the Office are currently the subject of a consultation by the Northern Ireland Assembly Committee for the Department of the First and Deputy First Minister. Complaints are normally investigated through correspondence rather than oral hearing and there is no suggestion that applicants should be legally aided. However, the means by which suitable cases are routed to the Ombudsman’s office as a cost effective way of resolving certain types of dispute with public authorities (and the appreciation of this option on the part of advisers) is part of our consideration of access to justice.

    4.33 Tribunals constitute a significant part of the administrative justice structure and can have a major impact on the lives of individuals in a variety of settings ranging from employment to social security appeals and education. They have been the subject of a recent review “Redressing Users’ Disadvantage” published by the Northern Ireland Law Centre in June 2010. That review drew on the review conducted by Sir Andrew Leggatt in England and Wales in 2001 and focused strongly on interests of users as well as the importance of independence and training for tribunal members. Further to the Northern Ireland review a Tribunal Reform Reference Group is being established under the auspices of the Courts and Tribunals Service; it will concentrate in particular on mapping the administrative justice landscape (including judicial review, tribunals and the Ombudsman) and improving the quality and timeliness of information available to tribunal users.

    4.34 While “Redressing Users’ Disadvantage” did make reference to the complexity of proceedings and to suggestions that those who were represented were at an advantage, the research on the impact of representation on outcomes in England and Wales does not seem conclusive12. However, from information provided to us by the Citizens Advice Bureau, we understand that Appeals Service (NI) statistics do suggest a significantly higher success rate in social security appeals where applicants are represented (part of the explanation for this may be that pre-hearing advice is resulting in cases with poor prospects of success being dropped). Representation of children in SENDIST13 and other tribunal hearings has also been raised with us. Given the nature of tribunal proceedings and other priorities, it might be difficult to justify use of public funds to support full legal representation at the generality of tribunals (except where, as is the case with Mental Health Tribunals, an individual’s liberty may be at stake). However, subject to views that may be expressed to us, we will explore further the availability of advice pre-hearing and help at certain tribunal hearings, including representation, provided by advisers with expert knowledge. Such assistance, where it is not already being provided, could be facilitated through the type of model described at paragraphs 4.7 to 4.10 above.

    4.35 Comprehensive and accessible pre-hearing information (being pursued by the reference group) and the use of an inquisitorial, as opposed to adversarial, approach by tribunal members, are relevant considerations. We would welcome views on whether more could be done to try to resolve issues before they reach the tribunal stage and on the extent to which the identification of cases suited to Alternative Dispute Resolution (discussed elsewhere in this document) could play a part. We understand that the Department of Employment and Learning is actively promoting ADR, in particular mediation, for suitable cases otherwise destined for employment tribunals14.

    4.36 The third pillar of the administrative law structure is judicial review – a means of challenging decisions or acts by public bodies through action in the High Court.  In 2009 there were 268 applications for leave to apply for judicial review in Northern Ireland and 105 full applications. In 2009/10 194 bills were paid out of the legal aid fund to lawyers acting on behalf of clients seeking judicial review at a total cost of £1.6 million (average cost £8227).

    4.37 We are in no doubt as to the importance of judicial review as the means by which individuals can challenge decisions that may be arbitrary and unfair or infringe human rights; and on occasion it enables individuals to bring matters of wider public interest before the court. The proposed Funding Code contains a separate section on judicial review and, given its significance in protecting human rights and the rights of the individual in respect of public authorities, we are working on the basis that it will remain within the scope of legal aid. The current draft of the Code would enable the decision on whether to grant legal aid to take account of whether other channels for resolving the issue have been exhausted and contains a number of other criteria to be considered, including:- the degree of importance of the case to the client; the wider public interest; whether human rights issues are involved; and, if those criteria are not met in an application for full judicial review, the prospects of success and proportionality. These issues have been the subject of consultation by the Legal Services Commission15 but if there are additional points which anyone wishes to draw to our attention we will consider them.

    4.38 We do not propose to duplicate the work that is currently being progressed in the field of administrative justice. However, the areas that we consider relevant to this review include:-

    Civil legal Aid – other issues for review

    4.39 The consultations on the Funding Code fully address the issue of scope and we do not propose to elaborate in this section of the paper beyond the points made in previous paragraphs. However, if there are issues about scope which any individual or organisation wishes to raise with us, they will be considered during the next stage of the review. In section 7 below, we examine the implications for scope in the event that further budgetary savings are required.

    4.40 Similar considerations apply in respect of the financial eligibility of individuals to be legally aided, where the outcome of research currently under way will be considered. We do think that there may be an opportunity to look at the extent to which the financial eligibility model could influence those in receipt of legal aid and their representatives to behave as if they were private clients paying for legal help and representation out of their own funds. In certain types of welfare case, however, there may be issues about whether initial advice should be universally available and the point at which, if at all, financial eligibility becomes an issue.

    4.41 We will look at whether an extension of the requirement to make staged contributions (however small) to all or almost all legally aided clients might focus minds on early resolution of disputes. Such an approach might help allay the fears of non-legally aided parties that a legally aided opponent is in a position to pursue a case to unreasonable lengths without the discipline of having to take account of the cost implications. There may also be ways of organising an extended contributions regime in such a way that it incentivises the use of ADR mechanisms. The administrative implications of extending the range of clients required to make contributions would have to be considered – there may be lessons to be learnt from the Scottish experience where tapered contributions have been extended to allow for a widening of financial eligibility in certain cases. We will wish to examine whether responsibility for collecting contributions should best lie with the funding body or the supplier of services (in most cases the solicitor). Another approach might be to enable the Commission to place a cap on publicly funded costs in some cases.

    4.42 On levels of representation, as with criminal legal aid, there is an issue about the criteria by which it is determined that legal aid should be certified for two counsel in the High Court or Family Care Centre. Unlike criminal legal aid, where this is a matter for the court, it is the Commission that decides whether to grant a certificate for senior as well as junior counsel in civil cases. In the Commission’s draft business plan for 2009/10 there is a commitment to consult on proposals that will result in a reduction in the number of civil cases where two counsel are funded by legal aid. We will wish to explore this issue with the Commission and other interested parties from the perspective of the extent and cost of dual representation at present, the criteria for decision-making and the circumstances where representation by two counsel is necessary in the interests of justice.

    4.43 Decisions by the Commission on whether to grant legal aid, certification of senior counsel and remuneration for lawyers are subject to appeal to panels of solicitors and barristers. These arrangements have worked well over the years but there is an issue about whether appeals panels consisting entirely of lawyers from the private sector ensure the necessary visible objectivity and whether the decisions are made in a way that properly informs Commission staff who take the decisions at first instance. In some other jurisdictions such as Scotland decisions are reviewed or appealed through internal processes, although judicial review is available; and in others members of the Board of the Legal Aid body can have a role. The Commission in Northern Ireland has consulted on new arrangements that provide for the appointment of an independent chair to a three person panel with the other two being an external lawyer and a senior member of staff from the Commission; decisions of the panels would be minuted so that reasoning was clear. Unless we hear persuasive views to the contrary, we can see merit in moving in this direction as soon as possible and would not wish work on this to be delayed pending the outcome of our review.

    4.44 The use of experts in civil and criminal proceedings is a significant issue in terms of cost, supply of suitably qualified people, and the potential for delay in the justice process while their services are secured and, where necessary, authority is sought from the Legal Services Commission. This is being examined by the Courts and Tribunals Service and we will work with them and take the views of others in the justice system on such matters as registers of qualified experts, remuneration and the use of video links for expert witnesses based outside Northern Ireland. One possibility that has been suggested to us is increased use of single experts appointed by the court and agreed by the parties, rather than each party identifying and procuring their own expert witness.

    Exceptional grant of legal aid in civil cases and inquests

    4.45 There is provision for the Legal Services Commission to make an exceptional grant of legal aid when authorised to do so by the Minister in a particular category of cases or in an individual case16. This enables legal aid to be granted in the rare circumstances where a case would not qualify for legal aid within the normal rules of scope and/or financial eligibility, but where there are overriding interests of justice reasons for granting it. It is through this power that the Lord Chancellor decided to delegate authority to the Commission to consider applications for legal aid from relatives seeking representation at inquests where there were allegations that public authorities bore responsibility for the death (thus bringing into play Article 2 of the European Convention – right to life).

    4.46  An exceptionality provision is in the interests of access to justice and can provide flexibility to afford fair treatment in particular and special circumstances, so long as there is widespread acceptance that it applies only to the genuinely exceptional. It cannot be an alternative route of appeal against rejections of legal aid applications. We also note that, as currently formulated, it brings the Minister into the decision-making loop which does not sit easily with the “independence” of decision-making (paragraph 2.4 above). In the course of the review we will consider:-

    Service providers, Quality and Regulation

    Partnership and a mixed model

    5.1   Paragraph 5.17 of the consultation paper “Public Benefit and the Public Purse - Legal Aid Reform in Northern Ireland” issued by the Northern Ireland Court Service in 1999 stated:-

    ”The Government is committed to ensuring that public funds provide the right help, at the right time, to be of optimum assistance to those most in need. In reality the assistance people need to enforce their rights is not always to be found in the courts. There are other service providers such as advice agencies who are ideally placed to provide assistance in appropriate circumstances, for example help with housing and social welfare enquiries. There are also experts in Alternative Dispute Resolution. The Government would wish to see the scheme allowing resources to be channelled in the direction most appropriate to the circumstances.”

    The Minister’s speech of 7 June 2010 develops the same theme and as part of this review we would welcome dialogue with interested parties on the development of a road map towards achievement of these objectives, building on what is already in place and in partnership with providers, government departments, local councils and other agencies.

    5.2   Paragraphs 4.7 to 4.15 above discuss ways of working with the voluntary and private sectors and measures that might be taken to resolve or prevent   problems before they reach court. In order to facilitate the provision of services in this mixed model, we will consider whether some or all of the following elements might be part of a procurement strategy and we will be open to other ideas:-

    The Legal Services Commission’s current thinking on contracting is set out in Chapter 6 of its consultation paper on the proposed funding code procedures published in June 2009.

    We will also look at the workings of arrangements whereby legal aid bodies in some other jurisdictions use directly employed lawyers for the provision of services. The Scottish Legal Aid Board employs a small number of public defenders to supplement private sector provision while the Legal Aid Board in the Republic of Ireland supplies civil legal aid services through directly employed lawyers in a network of 33 full time and 12 part time law centres. While we will not necessarily recommend such models for Northern Ireland, the experience of their operation might yield useful lessons and information for us.

    5.3    The mixed model need not be viewed as a threat to the maintenance of a healthy and efficient private sector legal profession, one of our key principles identified in section 2 above. There are currently around 2100 solicitors in private practice operating out of about 540 firms; there is a strong tradition of small locally based practices in Northern Ireland with about 250 firms having a sole principal. Over 600 barristers are in independent practice here. On an initial examination of the available statistics it appears that the number of solicitors per head of the population in Northern Ireland is greater than in most regions of England (outside London) and in Wales17, while the number of barristers per head of the population appears significantly greater here than in England and Wales as a whole. An examination of legal aid payments to solicitors’ firms by post code in Northern Ireland in 2007/08 and 2008/09 reveals a broad geographical coverage with the majority of two figure post codes being represented; as would be expected the heaviest concentration of payments is found in the main population centres such as Belfast, Derry, Newry, Lurgan, Enniskillen, Omagh, Ballymena, Armagh and Downpatrick.

    5.4    We will need to understand the possible impact of any reforms and changes to the legal aid system on the supply base of solicitors and barristers and will want to engage with the Law Society and Bar Council on this. It may not be the role of a legal aid system to help sustain the structure and network of legal professionals unchanged – all organisations and businesses need to be able to adapt to the changing environment. However, access to justice does require that people from all parts of the community and wherever located should have the means of securing legal assistance that is reasonably accessible. While “legal aid deserts” are to be avoided, the extent to which in the modern communications environment accessibility is dependant upon geographical proximity of legal services is something that we may wish to address in the course of the review. For example, in the case of children and young people, telephone, e-mail and the web are favoured means of communication and accessing information and, initially at least, might be more significant than face to face contact with an advice worker or solicitor.

    Quality

    5.5   Our terms of reference require us to address value for money (VFM) which, in addition to concerning ourselves with the Legal Service Commission, means taking account of costs, efficiency, volume and also the quality of service that is provided by the legal profession and other suppliers. Defining quality in this context is not straightforward but could be taken to include ease of access for the client, client care issues, technical skill and knowledge of the relevant law/subject of advice, applying that skill effectively in the interests of the client and ability to progress issues in a timely manner. Measuring quality can be equally problematic, but possible indicators might include customer satisfaction assessed in questionnaires, volume of complaints, audits and outcomes of cases.

    5.6   In a legal context the client is not well placed to assess the technical quality of the service provided and it would be fair to say that this has not been a major pre-occupation of the Legal Services Commission. The Commission’s main concern is to satisfy itself that payments are properly made in respect of services delivered. It may be argued that the Commission should work on the basis that the regulators (the Law Society and Bar Council) provide the necessary quality assurance through the setting and monitoring of appropriate standards and we will wish to discuss this with them and others. However, it is worth bearing in mind that Article 7(2) of the Access to Justice (NI) Order 2003 requires the Commission, when addressing remuneration issues, to have regard to the time and skill required to deliver the service and the number and general level of competence of those providing the service, as well as value for money.

    5.7   Mechanisms through which the Commission might satisfy itself in relation to quality could include some of the following:-

    5.8   In England and Wales the tendering process provides the opportunity for the Commission there to specify standards to be achieved. Where contracts apply in Northern Ireland (for example in the case of immigration and asylum and possibly, in the future, other specialist or advice services) they too can be used as a vehicle for establishing standards and systems for securing compliance, for voluntary as well as private sector suppliers. However, it is through a statutory Registration Scheme introduced in accordance with Article 36 of the 2003 Order that the Commission has the opportunity to establish a quality assurance system. Under such a scheme only practitioners on the register would be able to supply legally aided services and regulations could be made requiring them to adhere to codes of practice and enabling the Commission to monitor compliance.

    5.9    We will be interested in views on this issue of quality and on how to ensure compliance with agreed standards without imposing over-bureaucratic or disproportionate systems that add unjustifiably to the costs of the regulating organisation(s) and the regulated firms, practitioners and organisations.

    Regulatory Framework

    5.10 Effective regulation of the legal profession in the interests of the public and the consumer is part of the access to justice landscape. Where professional bodies have a dual role of regulation and representing their members, this raises the question of possible conflict of interest and the perception that, for example, regulatory powers might be used to safeguard the economic position of members of the profession. On the other hand members of the professional body have the background and knowledge to regulate effectively and have a clear interest in maintaining the integrity of the profession.

    5.11   It was against the background of such considerations that the Clementi Review in England and Wales led to the separation of regulatory from representational functions within the professional bodies and the creation of the Legal Services Board as a regulatory oversight body; it also heralded the introduction of alternative business models for legal services. In Scotland the Legal Services Act, passed in October 2010, has also liberalised the legal services market and made significant changes to the regulatory framework. The Competition Authority in the Republic of Ireland in 2006 recommended a bill along the similar lines to the Clementi model, but we understand that this has not been actioned.

    5.12 Here, the issues were addressed by a review chaired by Sir George Bain which produced a report in 2006 “Legal Services in Northern Ireland - Complaints, Regulation and Competition”. In short, the report concluded that regulatory functions in Northern Ireland had been discharged reasonably and that major change of the type that had occurred in England and Wales was not necessary; it confined itself to recommending enhanced oversight arrangements for regulation and complaints handling, through the appointment of a Legal Services Oversight Commissioner together with increased lay involvement. The report came out against liberalising business structures on the ground that this could impede competition in a system that already encouraged competition and “enabled anyone in any part of Northern Ireland the chance to obtain advice on any matter from the top barristers in Belfast”.

    5.13 We understand that legislation has been prepared to give effect to the Bain recommendations on regulation and do not therefore currently plan to go over that ground again. However, time has passed since the report was prepared and there has been experience in England and Wales of developing a framework for alternative business models. We will be interested in views on whether there is a case for reopening the debate about, for example, legal disciplinary practices (where solicitors and barristers could work in partnership) and legal services being provided by externally owned firms. It is arguable that enhanced opportunities for innovation in business organisation could have a positive impact on access to justice.

    Solicitor Advocates

    5.14   Solicitors currently have rights of audience in the lower courts and in the Crown Court in Northern Ireland, but not in the High Court or Court of Appeal. Arrangements are in place whereby practitioners can secure accreditation as solicitor advocates on successful completion of training under the auspices of the Institute of Professional Legal Studies. We will be open to discussion about rights of audience, the use of solicitor advocates at all levels of court and their fair remuneration in publicly funded cases. We will take account of experience in England and Wales where rights of audience for solicitors in all courts have been in place for some years and consideration has been given to ways of providing assurance of quality of different levels of advocacy for both branches of the profession.

    Structures for delivering legal aid and developing policy on access to justice

    Current arrangements and previous reviews

    6.1    The present administrative structure for the delivery of publicly funded legal services in Northern Ireland has its origins in a consultation paper “Public Benefit and the Public Purse” (1999) and the ensuing decisions paper “The Way Ahead” (Cm 4849 – 2000). These led to the Access to Justice (NI) Order 2003 which established the Northern Ireland Legal Services Commission (NILSC) as a Non Departmental Public Body (NDPB), taking over the administration of criminal and civil legal aid from the Law Society and assuming responsibility for the development of civil legal aid reform centred around a Funding Code. The key characteristics of the NDPB are that it is run by a publicly appointed board, is independent of, but accountable to, government through sponsorship arrangements and employs its own staff, including the Chief Executive who is Accounting Officer for the organisation.

    6.2   Since its formation in 2003 the Commission has been the subject of a number of internal and external reviews focusing in particular on financial matters. In 2004 and 2005 there was a Fundamental Legal Aid Review (FLAR) in Northern Ireland, carried out as an extension to a similar exercise in England and Wales. This exercise was sub-divided into 8 projects covering, inter alia rights of audience, social welfare, debt recovery, financial forecasting and police station advice. It is not clear to us how far this review was taken or its recommendations followed through and indeed some of it has been overtaken by events.

    6.3    The Commission underwent a “Landscape Review” in 2007, a process applied to arms length bodies at regular intervals in order to assess whether they are delivering in accordance with their objectives set by government and whether the governance and sponsorship arrangements are working as they should. This review of the Commission, conducted by external consultants, made detailed recommendations which were the subject of an action plan published by the Commission along with the report in January 2009. The Landscape Review endorsed the executive NDPB model as being the appropriate design for service delivery although it was not part of its terms of reference to carry out a detailed appraisal of alternatives. There was an internal three stranded review of the administration of legal aid carried out jointly by the Commission, the Courts and Tribunals Service and the Northern Ireland Office in preparation for devolution of justice matters. We will work with the Commission and the Courts and Tribunals Service to assess the extent to which the recommendations of FLAR, the Landscape Review and the pre-devolution review have been implemented and the continuing applicability of any that are outstanding.

    6.4   The main functions of the NILSC are to:-

    6.5   The Commission employs 160 staff to carry out these functions; it employed 101 when it took over the functions of the Legal Aid Department of the Law Society in 2003. Trends in expenditure on running costs are shown in the following table:-

    Table 3

    Year 03/04 04/05 05/06 06/07 07/08 08/09 09/10
    Staff (£M) 2.8 3.2 3.3 3.6 4.2 4.3 4.9
    Non-staff (£m) 1.0 2.4 1.8 1.9 1.5 2.4 2.5
    Total (£M) 3.8 5.6 5.1 5.5 5.7 6.7 7.4

    The increase in staff costs can be put down to a number of factors including the need to create capacity in the following areas where in some cases there had been minimal capability previously:-

    IT and accommodation contributed significantly to the rise in non-staff costs. Whatever the outcome of the review’s recommendations on the structure for delivery, the financial imperatives are such that we will want to satisfy ourselves that there has been a rigorous assessment of business processes and of staffing needs and levels in the Commission. Also, we will want to discuss the IT programme, especially the speed with which it can be expected to deliver efficiencies in processing within the Commission and improved service to the Commission’s suppliers in the legal profession (on-line submission of applications etc).

    6.6   In looking at the overall administrative costs of running the legal aid system in Northern Ireland we will also take account of the sponsor department. It employs 22 staff devoted to work on publicly funded legal services at an expected cost of around £850k in 2010/11; of those 4 are in the sponsorship role, holding the Commission to account, 3 provide legal support, 6 are in the civil reform section and 7 in the criminal reform section. The remaining two staff are the head of division and a support worker. In addition 3 staff are deployed by the Courts and Tribunals Service on providing administrative support to the Taxing Master in his work on very high cost cases, costing around £80k per annum.

    Structural Issues for review

    6.7   In England and Wales, where there is a very similar organisational model for delivering legal aid, the arrangements were subject to a review of delivery and governance by Sir Ian Magee which reported in March 2010. In short it identified a number of issues including some confusion of role and duplication between the England and Wales Commission and its sponsor, the Ministry of Justice, over policy development and financial management. The result has been a decision by government to legislate to convert the Commission into an agency of the Ministry so that the function becomes one carried out by an arms length body within the department rather than outside it and policy becomes the clear responsibility of the centre. There has been a similar outcome to a review of legal aid arrangements in New Zealand carried out by Dame Margaret Bazley and reporting in November 2009.

    6.8   We believe that decisions on structures for the delivery of legal aid policy and administration in Northern Ireland may be best made, not by assessing the pros and cons of agency or NDPB status (or complete integration with the sponsor department) – but rather by considering the strengths and weaknesses of the current arrangements and identifying the main characteristics of an ideal structure. Once that has been done, it should be possible to devise the mode of delivery suited to the particular circumstances of legal aid and access to justice in Northern Ireland, which may or may not fall within one of the traditional categories of NDPB, agency etc. In this agenda setting document we will confine ourselves to identifying some key issues to be addressed when discussing the way forward during the remainder of the review. In order to assist the debate we recommend as background reading “Read before Burning – Arms length government for a new administration”, published by the Institute for Government in July 2010. The following paragraphs will identify some of the main issues to be addressed.

    6.9    Independence of decision-making – a key principle identified in section 2 of this review. As with judicial and prosecutorial decisions, the interests of justice point to decisions on whether to grant legal aid (albeit within a policy set by Ministers and the legislature) in individual cases being taken independently of Ministers or sectional interests. There may be occasions where a grant of legal aid is in the interests of justice but politically unpopular and in such circumstances justice and Ministers are protected if the decision is taken independently. Independence can be achieved by a number of mechanisms, for example an organisation independent of government as now, a statutory appointment of an individual within the department with responsibility for the decisions or perhaps a board to oversee the independence of decision making.

    6.10 Responsibility for policy – it is arguable that the split in responsibility for civil legal aid policy between the Commission and the Courts and Tribunals Service does not make for the most efficient use of scarce resources in a small jurisdiction and makes clear direction and prioritisation more of a challenge. This could be a contributory factor in implementation of the Access to Justice Order having taken longer than planned (FLAR talked of implementation by September 2007). The concentration of policy resources in a single centre of excellence on access to justice matters may be the best way to secure focused and timely implementation of the change agenda and of any recommendations flowing from this review. Moreover, especially given the levels of expenditure at issue, there is an argument for the Minister having direct and immediate control over the policy levers for civil legal aid, along with criminal legal aid, from within the core department. At the same time, there are advantages in as complex an area as this to having operational service delivery staff working closely with those responsible for policy and being able to input as appropriate. Paragraphs 6.17 to 6.20 below address the relationship between legal aid policy and other access to justice matters.

    6.11 The input from a Board – the experience of the Legal Services Commission demonstrates that a Board of members drawn from a range of backgrounds can make a major contribution to the strategic and sometimes operational management of the service and to policy development. The availability of expertise from lawyers, accountants, ex accounting officers, and those with social services, business and voluntary sector backgrounds has proved its worth. However, there are a number of other ways in which such expertise can be garnered including advisory boards (often used with agencies), reference groups and non-executive board members within departments.

    6.12 Shared services and back office functions – Greater integration with the sponsor department might produce opportunities for savings in areas such as finance, IT and HR. The amount of time and effort devoted to negotiating and devising HR policies could be substantially reduced if they were harmonised with the civil service; and there may be issues about the scope for greater efficiencies through more delegation of HR matters to line management. On the other hand, there are financial and IT processes tailored to the requirements of legal aid and it cannot be assumed that these functions could simply be subsumed by the department without some dedicated provision of staffing resource for legal aid delivery; and whether integration of legal aid personnel processes with HR Connect in the civil service would be possible, or desirable, would have to be addressed.

    6.13 Financial Forecasting and Management – this is a difficult and complex area given that legal aid is essentially demand led. Factors influencing spend that are outside the control of the Chief Executive and Accounting Officer for the Commission include;- numbers eligible for legal aid (influenced by economic factors); levels of crime and detection rates; decisions by the judiciary; and policy decisions by the sponsor, especially on criminal legal aid. The current structures place a heavy reliance on effective co-operation and trust between the sponsor and the Commission and there are issues about where lead responsibility for financial forecasting and modelling really lies or should lie in practice. The structure for managing the delivery of legal aid should facilitate clarity in matters of financial forecasting and control.

    6.14  Financial implications of changing the status of the Commission – any consideration of options that involve assimilating all or part of the Commission into the Department of Justice will take account of the financial implications, such as changes to pension arrangements and the possibility that, if the service were delivered from within a department, it might be possible to reclaim VAT.

    6.15 Knowledge, expertise and identity – Legal Aid is likely to remain a complex area where the build up of institutional knowledge and expertise at all levels can benefit the quality of service delivery. This may point to the retention of a delivery structure of the sort that currently exists in NDPBs and agencies, perhaps with more opportunities for staff to move in and out for developmental purposes and ensuring that the function is exposed to developments and organisational cultures from outside.

    6.16 We will be interested in views from the Board, staff and management in the Commission, the Courts and Tribunals Service, DoJ and stakeholders on how these and other matters feed into consideration of the structures for delivery of legal aid and policy. The key issues will be where responsibility for policy should lie and the extent to which service delivery should be independent of, or integrated into the Department of Justice.

    Policy on Access to Justice

    6.17 At present the Northern Ireland Legal Services Commission is sponsored and held to account by the Courts and Tribunals Service, itself an agency of the Department of Justice. We understand that there are plans to bring the sponsorship role (and, we assume, the Courts and Tribunals Service current policy responsibilities for legal aid matters) into one of the directorates of the DoJ. Whether or not the policy and reform responsibilities of the Commission are moved into the sponsor department, we believe that the decision on where in DoJ to locate access to justice functions and their relationship with other justice functions could have a big impact on the capability to develop services in this area. In a small jurisdiction making the best use of limited resources and expertise is critically important. Also of relevance is that in a department that has its recent origins in the Northern Ireland Office, with its inevitable focus on policing and criminal justice, there may be advantages in ensuring that the core of the DoJ has a strong and visible capacity in relation to civil, as well as criminal, justice.

    6.18   There are a number of functions at issue here, including:-

    6.19 We do not propose in this document to speculate on the precise organisational structure for accommodating the matters outlined above. But the structure should support the development of these functions and services in a strategic “whole systems” way that recognises the inter-relationships between them and makes the best use of available resources. As always, the structural arrangements must respect judicial independence, while facilitating effective co-operation on the workings of the justice system. Models in other jurisdictions may be relevant and we will welcome views on these issues and address them in detail in the course of the review.

    6.20 One of the advantages of integrating legal aid policy with a strong justice capacity at the heart of DoJ is that it would help ensure that account is taken of the implications for access to justice and expenditure on legal aid when policy and legislation are developed within the department or elsewhere in government. We have already mentioned the court based approach in public law cases enshrined in the Children Order as having a big impact on expenditure. A more recent, albeit smaller, example is the Criminal Justice (NI) Order 2008, which extended the role of indeterminate sentences and therefore the number of cases to be considered by the Parole Commissioners, with a consequential impact on the number of requests for legal aid. There is a case for requiring legal aid impact assessments to be drawn up as a matter of routine alongside financial memoranda and regulatory/equality impact statements whenever new policy or legislation is prepared – and where an increase in legally aided cases can be expected, it is for consideration whether the sponsoring policy department should be responsible for finding the necessary increase in funding.

    The Civil Justice Reform Group

    6.21 We have heard a number of positive comments about the review of the civil justice system in Northern Ireland conducted under the chairmanship of Lord Justice Campbell and reporting in 2000, together with suggestions that, while many of the recommendations had been addressed, there were others that might still be revisited.  This review was initiated by the Lord Chancellor in the wake of the Woolf reforms in England and Wales. Paragraph 8 of Lord Justice Campbell’s final report outlines a set of principles that contain much common ground with our terms of reference, including:- the avoidance of litigation where possible; cheaper, less adversarial and less complex litigation when it occurs; and a system that is responsive to the needs of litigants.

    6.22 We will engage with the Courts and Tribunals Service on the extent to which the recommendations of the Campbell Report have been implemented and consider whether there are outstanding matters which fall within our terms of reference. Views from others will be welcome but we do not think that it would be appropriate (or possible within the resources available to us) for our review to cover detailed matters of court procedure where we understand that the judiciary have been active in promoting pre-action protocols and other case management measures to facilitate early resolution and efficient processing of litigation.

    6.23 One of the recommendations in the Campbell review that we will address is the proposal for a Civil Justice Council mirroring the creation of a similar body in England and Wales. The recommendation was for a body under the chairmanship of the Lord Chief Justice with a remit to consider whether the civil justice system is accessible, fair and efficient and, inter alia, to advise government and the judiciary on the development of the civil justice system and the impact on the system of proposed legislation or policy changes. Membership was to include representation from different tiers of the judiciary, practising barristers and solicitors, the Courts and Tribunals Service and 6 to 8 nominees with experience of consumer affairs, the advice sector, academia and/or litigant representation. We understand that a civil justice committee has been established, but not with the breadth of remit or representation originally envisaged. We will examine the workings of the Council and its sub committees in England and Wales and take views on the desirability of a similar body, or some other means of achieving the same objectives, in Northern Ireland.

    Options for making further budgetary savings

    7.1    Our terms of reference require us to make proposals that are within budget and to identify possible future savings to reduce the budget. The requirement to identify the source of possible additional savings is all the more necessary if, as a result of this review, we identify areas where new expenditure is needed which can only be funded by making savings elsewhere.

    7.2    As already noted, budgetary forecasting in this demand-led area is far from straightforward. Spend is dependant on a range of uncertain factors affecting the rate of take-up of legal aid and on the timing of bills which can be sometimes be submitted a number of years after the application for a certificate is granted. However, we will work with the Legal Services Commission and the Courts and Tribunals Service to satisfy ourselves as far as is reasonably possible that, based on current projections and timely implementation of criminal reform initiatives, expenditure will reduce to £79m in 2013/14 in accordance with the devolution settlement. We are as conscious of the dangers of over-estimating projected expenditure as under-estimating it, given the impact on service delivery of taking action that produces an under-spend. We will also identify and, in our financial modelling, take account of the costs and savings that might arise as a result of the implementation of recommendations from this review.

    7.3    The remaining paragraphs identify the (limited) strategic options that are available in the event that further savings are required, including some that might be regarded as impracticable and very much “last resort”; we will welcome views on these options and on any other ways of saving money or generating other sources of income. Ideas on how such options for savings might be prioritised would be particularly welcome.

    7.4    Limit scope – from a human rights perspective, there is very little room for manoeuvre with criminal legal aid beyond what is already planned. On the civil side, however, it would be possible to limit scope to areas identified in the Funding Code as having top or high priority such as public law cases involving the care of children and those where the client is at immediate risk of loss of life or liberty. Other high priority areas identified in the Code that could be safeguarded if resources allowed, might include domestic violence proceedings, help and advice on social welfare matters, private law proceedings involving the welfare of children and proceedings against public authorities alleging serious wrong doing, abuse of power or breach of human rights. Other types of advice or representation in proceedings, including money damages, private law family cases where children are not involved and injunctions in neighbour disputes, might be regarded as those most likely to be taken out of scope in the event that this means of reducing spend were adopted. We should have to be prepared for an increased likelihood of cases going before the court with an imbalance in representation between the parties and for more litigants in person.

    7.5   Reduce remuneration – this could be an across the board percentage reduction over all areas where the Commission or department has control over remuneration. However, it may be that the structure of remuneration arrangements is such that it would be more equitable to address remuneration in different areas separately. We can examine the consequences of seeking equality of remuneration with other jurisdictions. There could be legislation to enable the setting of fees by the department in all publicly funded civil cases, as well as criminal. There may be other ways of addressing remuneration that we could explore.

    7.6   Financial eligibility and contributions – reduce the proportion of the population able to take up legal aid by lowering financial eligibility limits and/or requiring greater contributions on the part of those who do qualify.

    7.7   Review aspects of substantive law that are heavily dependant on legal process – for example it might be feasible to introduce procedures for undefended divorces that do not require any court process and the procedures for public law cases involving children could be made less adversarial and more along the lines of the Scottish model.

    7.8    Reduce running costs at the Legal Services Commission – we will consider what savings in running costs might accrue from recommendations in our final report as well as from a staffing review and changes to business process and/or IT. Beyond that savings would come at the expense of backlogs and/or reduced scrutiny.

    7.9    Other sources of funding – some jurisdictions channel interest from private client accounts into legal aid, although in the current economic environment this is unlikely to provide a big source of income. Where partnership with the voluntary sector is involved, there might be scope to lever in some funding from sources such as the lottery or European funding.

    7.10 Attachment of future earnings or benefits of convicted criminals to pay for all or part of their legal costs.

    7.11 Access to funds or interest that are the subject of restraint or seizure under Proceeds of Crime legislation.

    7.12 Contributions from financial institutions to cover the cost of advice, assistance and representation in re-possession and debt cases.

    7.13 Pro bono – The Northern Ireland lawyers pro bono unit is a registered charity operated under the auspices of the Bar Council and Law Society in Northern Ireland. It is well supported in the profession.  An option along the same lines is to encourage law students and others to participate in advice centres and law centres. However, pro bono and student schemes are for understandable reasons not viewed by those who support them as substitutes for legal aid.


    Review Team:  Jim Daniell; Angela Ritchie; Catherine McClements
    17 November 2010

    Footnotes

    1. The Department of Justice in Northern Ireland issued a consultation in October 2010 on the introduction of a sentencing guidelines mechanism.
    2. Direct measures can include fines, prosecutorial warnings, diversion, unpaid work orders, compensation orders etc.
    3. A fixed penalty, including where appropriate compensation for the victim, that can be offered by the prosecution in respect of any case before the district court and which does not attract a criminal record.
    4. There are various models of restorative justice and diversionary cautions that can be applicable to adults as well as children and young people.
    5. Access to Justice (NI) order 2003, Article 12.
    6. Administrative Dispute Resolution Act 1996, Alternative Dispute Resolution Act 1998 and a draft Uniform Collaborative Law Act  recommended in 2009 for enactment by the States
    7. Directive 2008/52/EC
    8. To Protect and to Serve: The Separate Representation of Children in Private Law Proceedings
    9. The DSD office that carries out assessments of financial eligibility on behalf of the Commission and, in respect of criminal legal aid, establishes the existence of benefit entitlement on behalf of the Courts and Tribunals Service.
    10. A contingency fee is where the lawyer is paid a percentage of damages.
    11. Report NIA 48/09/10R ordered to be printed on 11 March 2010
    12. Research Reports by Michael Adler on “the Potential and Limits of Self-representation at tribunals” and “Can tribunals deliver justice in the absence of representation?”
    13. Special Educational Needs and Disability Tribunal
    14. See “Disputes in the workplace – a systems review” 2009: a consultation by the Department for Employment and Learning.
    15. Legal Services Commission consultations on Proposals for a Northern Ireland Funding Code (2006) and on the Proposed Criteria (June 2009).
    16. Article 12(8) of the Access to Justice (NI) Order
    17. Trends in the solicitors’ profession of England and Wales – Annual Statistical report 2009

    Annex A

    ORAL STATEMENT ON ACCESS TO JUSTICE:  13 SEPTEMBER

    Mr Deputy Speaker,

    The devolution of justice powers offers Northern Ireland many benefits and opportunities.  Among these are the opportunities to identify local solutions to local needs, to look afresh and adopt different approaches that will serve our community better.  Ultimately, it gives us the opportunity to reshape our justice system to fit the needs of Northern Ireland.

    With that in mind, and as Members of this Assembly will know, I indicated on 7 June my intention to commission a fundamental review to help develop our thinking on how best to ensure access to justice for the least well off in our society.  At that time I undertook to set out my plans for that review to the Assembly, and this statement is intended to fulfil that commitment.

    I want to build a system of justice in Northern Ireland that will meet the needs of everyone.  In criminal cases we need, and deserve, a system that works for all – victims, witnesses and defendants, and which gives everyone confidence that the system works.  I welcome the announcement by the Lord Chief Justice last week that he wants to hear what people think about sentencing for certain types of crimes, and I support his initiative. We also need and deserve a civil justice system that provides an effective and accessible way of resolving many different kinds of legal disputes - and of course both criminal and civil cases need to proceed without delay.

    Members will be aware that work is already underway to address the urgent need to align legal aid expenditure with the available budget, and in the coming weeks I intend to commence public consultation on proposals to achieve that.  I am grateful to both the Bar Council and the Law Society for the degree of engagement that they have entered into on that issue, engagement which has helped us to develop proposals that are “home grown” and provide a best fit for Northern Ireland. I hope that that consultation exercise will provide an opportunity to achieve the best possible degree of agreement on how to secure the reduction in expenditure that is required.  I also welcome the Bar Council’s initiative to encourage its members to undertake cases under the existing arrangements, thereby avoiding any disruption in the Courts.

    But the review that I am announcing today is more fundamental than an exercise in cost control.  Rather, it is an exercise to examine how we can best help people secure access to justice.

    Fair and effective access to justice is an essential element of getting justice right, critical to building confidence and an important part of our vision for a future justice system.  Our present system is built around providing financial assistance to those who could not otherwise find the money to pay for legal representation.   But there may be other approaches, and there may be better ways of using the funds available.

    Deputy Speaker, the Terms of Reference that I have set for the Review are as follows:
    To review legal aid provision in Northern Ireland and to develop proposals to improve access to justice which will:

    I am pleased to inform the Assembly that the review will commence today, and that it will be carried out by Mr Jim Daniell, who is standing down from the position of Chairman of the Legal Services Commission to lead the review.  As members of the Assembly will be aware, Mr Daniell previously chaired the Review of Criminal Justice in Northern Ireland which flowed from the Good Friday Agreement.  That, and his more recent experience of chairing the Northern Ireland Legal Services Commission, makes him the ideal person to carry out this review.  While I have set the terms of reference for the review, his review will be independent.

    I have asked for a preliminary report by the end of February 2011, with a final report by the end of May 2011.

    I particularly want the review to consider new ideas; new ways of doing things, thinking that is radical and innovative.  I want to look at how we help people solve problems and disputes without necessarily bringing those disputes into the courts, and how we can support people through the justice process.  While we must ensure that access to legal representation will always be available to those who need it, I believe that we should try to find ways of avoiding the costly, adversarial and often stressful experience of a court hearing, in favour of alternative methods of resolving disputes.

    I want the review to consider ideas and proposals – and constructive criticism – from as many people, groups and organisations as possible.  I know that the voluntary sector will have an important contribution to make to this review, as will the legal profession and the statutory agencies involved in the justice system.  But I want everyone to have their say, because everyone should have a voice in how the justice system works.

    Deputy Speaker, the Review of Access to Justice will play an important part in developing our vision for justice in Northern Ireland, and in securing justice for all.  I look forward to bringing its conclusions to the Assembly in due course.

    Extract from Speech by Minister of Justice – 7 June 2010

    Justice for all – access to justice

    And “Justice for All”: means more.  It means making justice accessible for all, and ensuring that we remove any barriers that prevent that.  Much attention has been paid to the very necessary efforts that are being made to bring the costs of our legal aid system under control, and if that was necessary last year it is all the more necessary in the current financial climate.

    The legal aid system in Northern Ireland has operated in essentially the same way since the 1960s.  What has changed over the years, however, is just how expensive this system has become.  Last year, more than £100m was spent on the legal aid system.  Far too much of the budget is now being spent on comparatively few cases.

    The recent phenomenon of Very High Cost Criminal Cases – in which less than 1% of the cases consume almost 30% of the total legal aid budget – is unsustainable and I am determined to bring it to an end.  I will ensure that that will be the case, using scarce resources wisely.

    This is why I have already indicated that I will bring forward a range of reforms to the legal aid system, with the objective of aligning legal aid expenditure with the available budget.

    But simple reducing the cost of the current legal aid system would be a missed opportunity.  For many years the operation of the legal aid system in Northern Ireland has developed in tandem with the system in England and Wales.  But devolution provides the opportunity – for the first time in a political generation – to decide how best to help people secure access to justice in Northern Ireland, and I am determined to make the most of this opportunity.  So, today, I want to go further than the reforms I have already indicated, and announce my intention to undertake a Fundamental Review of Public Legal Services in Northern Ireland, and will set out my plans in detail to the Assembly in due course.

    The objective of the review will be to go back to first principles, and to decide how best to help people secure access to justice.  My vision for public legal services in Northern Ireland is:

    I am determined that the report of the Fundamental Review will set out a road map to make that vision a reality, and provide Justice for All.


    Annex B

    Northern Ireland Legal Services Commission - Volume of business and expenditure since 2003/04

    Table B1 - Criminal Legal Aid – expenditure

    The figures for Magistrates and Crown Courts exclude very high cost cases (VHCCs) which are shown in a separate column.  Figures for bails/appeals have been grouped as they represent a small proportion of the overall spend.

    Year Mag Ct (£m) Crown Ct(£m) VHCCs (£m) Bails/appeals
    (£m)
    Total (£m)
    03/04 6.9 21.7 0 0.8 29.4
    04/05 8.8 22.7 0.3 0.8 32.6
    05/06 10.7 18.9 0.1 0.9 30.6
    06/07 7.2 32.5 1.3 0.7 41.7
    07/08 13.1 24.1 6.5 0.8 44.5
    08/09 14.3 18.3 17.5 0.5 50.6
    09/10 14.8 16.3 28.4 0.5 60.0

    Table B2 – Criminal Legal Aid – Certificates registered

    The figures for the Crown Court include very high cost cases, certified as such under the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005.  VHCCs have been certified at a rate of around 50 per year.

    Year Mag Ct Crown Ct Bails/appeals Total
    03/04 23,262 1,905 2,746 27,913
    04/05 24,681 2,215 2,802 29,698
    05/06 25,329 1,813 3,313 30,472
    06/07 27,433 2,153 3,400 33,027
    07/08 28,094 2,508 2,266 32,970
    08/09 27,415 2,117 1,080 31,004
    09/10 29,805 2,291 1,250 33,515

    Table B3 – Legal Advice and Assistance (LAA)

    For LAA, the table shows separate data for advice given to clients in police stations under the PACE legislation.  Figures before 05/06 are unavailable.

    Year No  of PACE bills PACE costs (£m) No  of other LAA bills Other LAA costs (£m) Total Bills Total Costs (£m)
    05/06 10,982 1.43 16,271 1.25 27,253 2.68
    06/07 16,497 2.21 14,717 1.14 31,214 3.35
    07/08 12,686 1.73 12,038 0.99 24,724 2.72
    08/09 18,080 2.44 16,558 1.35 34,638 3.79
    09/10 15,661 2.08 14,388 1.35 30,049 3.43

    Table B4 – Advice by Way of Representation (ABWOR)

    This table shows separate data for ABWOR Children Order (CO) cases. The bulk of expenditure under ABWOR (other) relates to non molestation orders.

    Year No of ABWOR (CO) bills paid ABWOR (CO) costs (£m) No of ABWOR (other) bills ABWOR (other)
    Costs (£m)
    Total Bills Total Costs
    (£m)
    03/04 2,719 1.9 3,894 1.6 6,613 3.5
    04/05 6,597 5.6 4,703 2.0 11,300 7.6
    05/06 3,966 3.1 3,647 1.6 7,613 4.7
    06/07 4,067 4.6 3,130 1.4 7,197 6
    07/08 3,857 4.0 3,217 1.7 7,074 5.7
    08/09 4,475 5.2 3,270 1.6 7,745 6.8
    09/10 4,941 5.5 3,353 1.8 8,294 7.3

    Table B5 – Civil Legal Aid

    This table shows separate data for civil legal aid family and non-family cases.  Family cases are adoption/affiliation, Children Order, divorce/nullity, matrimonial and wardship. Other civil include judicial review, negligence, immigration, employer’s liability, contract etc.

    Year No of Civil (family) bills Civil (family) costs (£m) No of civil (other) bills Civil (other) costs (£M) Total bills Total costs
    (£m)
    04/05 1,634 5.0 2,025 8.6 3,659 13.6
    05/06 2,714 13.55 2,412 5.85 5,126 19.4
    06/07 2,486 12.3 2,252 5.6 4,738 17.9
    07/08 2,552 12.5 2,458 5.86 5,010 18.36
    08/09 2,313 12.94 3,178 6.17 5,491 19.11
    09/10 2,842 16.17 3,425 8.86 6,267 25.03

    Table B6 – Running costs of the Legal Services Commission and staff numbers

    Year Staff nos Staff costs (£m) Other running costs (£m) Total running costs (£m)
    03/04 101 2.8 1.0 3.8
    04/05 104 3.2 2.4 5.6
    05/06 119 3.3 1.8 5.1
    06/07 120 3.6 1.9 5.5
    07/08 140 4.2 1.5 5.7
    08/09 147 4.3 2.4 6.7
    09/10 160 4.9 2.5 7.4

    Table B7 – Consolidated table showing total the cost of legal aid spend and provision for future years

    Year Civil (inc LAA) (£m) Criminal (£m) Grant in Aid
    (£m)
    Total (£m)
    03/04 21.4 29.4 3.8 54.6
    04/05 26.4 32.6 5.6 64.6
    05/06 27.4 30.6 5.1 63.1
    06/07 27.7 41.7 5.5 74.9
    07/08 27.5 44.5 5.7 77.7
    08/09 32.5 50.6 6.7 89.8
    09/10 36.9 60.0 7.4 104.3
    10/11 - - - 105
    11/12 - - - 85
    12/13 - - - 85
    13/14 - - - 79