Access to Justice Review Northern Ireland

The Progress Report

March 2011

Table of Contents

Introduction

Guiding Principles and Resources
  Resources

Criminal Legal Aid

Civil Legal Aid
  Advice, the voluntary sector and partnership
  Alternative Dispute Resolution (ADR)
  Family and Children
  Money damages cases
  Administrative law
  Exceptional Grants and inquests
  Expert witnesses
  The Reform Agenda

Service providers, Quality and Regulation

Structures for delivering legal aid and developing policy on access to justice
  Policy on Access to Justice
  The Civil Justice Reform Group and other reviews

Living within the Budget

Annex A

Introduction

1.1   This document records progress to date with the review and outlines the thinking and likely future direction of the review team.

1.2   We were appointed in September 2010 by the Minister of Justice, David Ford MLA, to develop proposals to improve access to justice which will:-

1.3   Following an intensive round of meetings with representatives of the legal profession, government departments, the Northern Ireland Legal Services Commission, the voluntary sector and other key stakeholders, we published on 15 November two documents to aid further discussion. The Agenda identified the areas and issues that we would be examining, while the Discussion Paper was intended to float ideas and stimulate debate. These documents were the basis for a consultation exercise in which we sought views, through written submissions and meetings, by the end of January 2011.

1.4   By 28 February we had received 40 written submissions from organisations and individuals listed at Annex A and had undertaken visits and discussions with relevant organisations in England and Wales, the Republic of Ireland and Scotland. We are very grateful to everyone in those jurisdictions who gave us so much of their time and provided many useful insights deriving from their experiences in the fields of legal aid and access to justice generally. While our proposals will be fashioned to meet the specific requirements of Northern Ireland, it makes sense to learn from the experiences of other jurisdictions with justice systems that have many similarities with ours. The review team has so far taken part in over 50 meetings with stakeholders and has conducted workshops on Alternative Dispute Resolution and on a Partnership Approach to the Provision of Advice and Assistance by means of a mixed model of service provision. We have particularly welcomed the opportunity to meet with the judiciary from all tiers of civil and criminal courts in Northern Ireland in order to discuss the implications for the workings of the courts of ideas under consideration. We have attended three court sessions and will sit in on a number of others in the coming weeks.

1.5   We have been very impressed by the depth and quality of the written submissions that we have received and by the commitment to working with us demonstrated by individuals and organisations from all sectors. It would not have been possible in the time available to give the views expressed by consultees sufficient consideration (including further analysis, testing and discussions with stakeholders) at this stage even to produce emerging findings in many important areas covered by this review. So this document seeks to identify some issues where there seems to be a general consensus while in other cases outlining options for further consideration and/or making suggestions on how particular pieces of work might be progressed. Given the relatively limited resources available to the review team, we will identify some areas where it might be better now for machinery to be established to take work forward rather than await the outcome of our final report.

1.6   We aim to produce our final report by the end of June 2011 and within the same timescale to publish a synopsis and analysis of the submissions made to us during consultation. While we will proceed on a basis that takes account of views expressed to us, we may have to make recommendations that do not always accord with these views in order to meet our terms of reference and in the light of the budgetary constraints we all face. In the meantime, if any individual or organisation wishes to make a further submission or seek a meeting on matters raised in this progress report, please make contact as soon as possible, and no later than 13 May 2011, at the following address:-

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

We will be seeking meetings to pursue matters addressed in this progress report and in submissions that have been made to us.

1.7   The remainder of this paper follows the chapter headings used in the Agenda and Discussion Paper, both of which can be found on the Courts and Tribunals Service website along with other relevant material.

Guiding Principles and Resources

2.1    Respondents to our consultation papers have generally endorsed the principles outlined in paragraphs 2.1 to 2.11 of the Discussion Paper and 2.1 of the Agenda.  We intend to adopt these as guiding principles for the review and suggest that, subject to some additional points made in paragraphs 2.2 to 2.6 below, they are used as a basis for assessing the impact of options and proposals relating to access to justice. Inevitably there will on occasion be tension between some of the principles, to be addressed through good judgement and consultation amongst stakeholders. For convenience the main principles are listed below:-

2.2   On human rights, we agree with those respondents who point out that provisions to be taken into account in the review include not only Article 6 of the European Convention (right to a fair trial), but also Articles 2 (right to life), 5 (right to liberty) and 8 (right to respect for private and family life). Other relevant instruments are:- Article 14 of the International Covenant on Civil and Political Rights (commitments supporting equality before the courts and fair trial); UN Basic Principles 1 and 3 on the Role of Lawyers (states to ensure sufficient resources to provide legal aid to the poor and disadvantaged and legal professions to co-operate); UN Convention on the Rights of Persons with Disabilities (access to justice through procedural and age appropriate mechanisms); UN Convention on the Rights of the Child (in particular Article 4 on the responsibility of governments to make rights accessible to children); Resolution 78(8) of the Council of Ministers (availability of legal aid); and Article 47 of the Charter of Fundamental Rights of the European Union (right to a fair trial, representation before the courts and legal aid where necessary to ensure access to justice).

2.3   We also confirm that the commitment to equal access to justice includes adherence to the requirements of sections 75 and 76 of the Northern Ireland Act 1998 in relation to the promotion of equality of opportunity. We will be mindful of these provisions in carrying out the review and, while resources and time do not permit us to carry out formal screening and equality impact assessments, we recognise that this will be a necessary part of the procedure in implementing policy proposals contained in our final report.

Resources

2.4   Some responses to our consultation documents have noted the frequency of references to “value for money”, operating “within budget” and cost effectiveness; and concern has been expressed that financial constraints might result in a dilution of access to justice. We are quite clear that this review is not primarily driven by a cost-cutting agenda, as is evidenced by the first four bullets of our terms of reference. However, even if there were no budgetary constraints, it is entirely reasonable that the taxpayer should expect value for money in service provision through legal aid and a cost effective service, considerations that we will continue to reflect on as we proceed with the review as required by the final two bullets of our terms of reference.

2.5   We are asked to make proposals for achieving value for money “within the available budget” and to identify possible future savings. It seems to us that a realistic and strategic appraisal of what can be achieved within budget is more likely to produce an outcome that safeguards the principles outlined in paragraph 2.1 above than a statement of aspirations which are not linked to financial provision. We do not underestimate the scale of the challenge ahead and understand the concern felt in some quarters about the implications of a reducing budget but hope that the opportunity will be taken for further dialogue on these matters as we prepare our final report.

2.6   Budgetary management in this area has to work on the basis that spend in a demand led service such as legal aid is driven by a variety of factors, some outside the control of the spending body and not easily predictable. For example, there are signs that the recession is causing some increase in volume in certain types of case in this and other jurisdictions, while any changes in the level of crime and police detection rates will impact on criminal legal aid. Another complication in the management of the cash budget is the variable lead in time between a legal aid certificate being granted and the resulting bill being submitted for payment, sometimes several years. Furthermore, the consultative and legislative processes required to make significant changes that will affect the budget mean that there can be a significant lead in time before those measures are implemented. Inevitably in such circumstances, in year budgetary management is needed in order to identify pressures and easements at the earliest opportunity and make the necessary adjustments; the extent to which this is necessary depends in part on whether realistic provision is made in the first place.

2.7   Notwithstanding the issues identified in the previous paragraph, we will in this review take account of the importance of enhancing predictability and control of spend. This can be achieved through such devices as maximising the coverage of standard fees, securing objective and consistent decision-making, prompt presentation and settlement of bills and, where feasible, keeping critical decisions on legal aid within the control of the spending body. It should be possible to keep a tight reign on the average costs of cases, even if volume is more difficult to predict. Also we are aware that the Commission is engaged in exploratory discussions about the implementation of resource budgeting and forecasting; in our final report we will comment on the extent to which this will ameliorate some of the challenges associated with cash-based forecasting and financial management in this field.

2.8   The budget of the Northern Ireland Legal Services Commission for future years is as follows:

Table 1

 

2011/12
£m

2012/13
£m

2013/14
£m

2014/15
£m

Budget 2010

83.9

83.4

75.2

75.0

This represents a reduction of around £1 million in 2011/12, £1.5 million in 2012/13 and £4 million in 2013/14 compared with the position as it stood when we published the Discussion Paper. Given the factors outlined in paragraph 2.6, we are working on the basis that any measures recommended in this review, if implemented, are unlikely to impact on spend significantly until 2013/14. Spend against budget for 2011/12 and 2012/13 will have to be addressed on the basis of any savings accruing from criminal reforms already in train and through in year financial management.

2.9   For 2013/14 (and the following year), we understand that if the criminal reforms outlined at paragraphs 3.2 to 3.4 below are implemented, on the basis of current projections that will still leave savings of around £5 million to be achieved. In order to close the gap we do not propose to factor in further reductions in remuneration for Crown Court cases in that timescale and think it important that the impact of the changes being made is kept under close review and assessed before any further changes are contemplated.  For the purposes of the review, we will work on the basis of the bulk of any necessary savings coming from civil legal aid, with a proportionate contribution from running costs. We may have to consider a combination of options some of which will be unwelcome. Inevitably, where in the course of the review unmet need is established or arguments adduced for additional expenditure, they will have to be addressed on the basis of securing savings elsewhere or identifying alternative sources of funding. In this context, before producing our final report we will want to have detailed discussions with the Commission and DoJ about the budget projections and the financial implications of changing the status of the Legal Services Commission. These matters will be addressed further in sections 6 and 7 of this report.

2.10   Finally in this section, we would like to give an assurance that the review team is well aware of the critical importance of sustaining criminal and civil justice systems that command the confidence of all parts of the community in Northern Ireland. Access to justice is an essential and integral part of a democratic society in which the rule of law prevails.

Criminal Legal Aid

3.1   In the light of responses to our discussion paper, we have no plans to enquire further into the scope of criminal legal aid insofar as it applies to advice, police station work and representation in the magistrates’ and crown courts. The current arrangements are proportionate and conform with human rights requirements; and the Widgery criteria1, given statutory force in Article 29 of the Access to Justice (NI) Order 2003, provide a sound basis for determining which cases are sufficiently serious or complex to warrant publicly funded legal representation for financially eligible defendants.

3.2   In the Discussion Paper we said that the conduct of the review should not impede progress towards developing and implementing four initiatives aimed at helping keep the Legal Aid Fund within budget. Some responses expressed concern about one of those measures:- in Crown Court cases, subsuming Very High Cost Cases (VHCCs) into the standard fee arrangements and reducing fees by 25% for solicitors (as the measure now stands) and 20% for barristers. It was suggested in one submission that as an independent review we should not compromise our ability to address any aspect of the system. We do recognise that the scale of these reductions will have a big impact and that ideally all aspects of remuneration should be addressed on a strategic (and more gradual) basis across publicly funded legal services. However, we recognise that it was essential to tackle the excessive payments made through the VHCC arrangements and to introduce urgently a measure that by 2013/14 would produce savings of around £16m per annum; the alternative would have been major reductions in the coverage of civil legal aid. In considering issues of remuneration in future, the principles outlined in paragraph 3.72 of the Discussion Paper provide a starting point, in civil as well as criminal work.

3.3   Of the other initiatives, regulations are being introduced to tighten the criteria and procedures for assigning two counsel in Crown Court cases and a power is being taken in the Justice Bill to enable the introduction of Recovery of Convicted Defendants Costs Orders (RCDOs); we do not propose to spend further time in the review on the merits of either of these, except to raise the issue of whether in certain circumstances defence costs might be recovered out of assets seized or frozen under Proceeds of Crime legislation.

3.4   The fourth initiative is the power being taken in the Justice Bill to introduce a fixed means test for criminal legal aid with clearly stated financial eligibility limits, requiring a more structured review of defendants’ financial circumstances than is the case at present. The Courts and Tribunals Service commissioned research into the implications of introducing such arrangements in the magistrates’ courts which, on the face of it, calls into question whether the savings likely to accrue from such a measure would be sufficient to justify the cost of administration. Another critical consideration is that the decision-making process should not interfere with the administration of the courts or impede the processing of cases. We believe that these issues are worthy of further investigation especially in the light of the experiences of other jurisdictions. In Scotland streamlined checking procedures requiring a minimum of documentation mean that decisions on financial eligibility in summary cases are made in an average of 1.7 days; while the Republic of Ireland is contemplating a procedure that will enable the Court to take an immediate preliminary decision on legal aid, subject to subsequent verification. We understand that the Courts and Tribunals Service is reviewing the research and we hope to be able to say more about this in our final report. Savings worth around £0.5 million per annum resulting from the introduction of fixed means testing in magistrates’ courts have been factored into financial projections. So far as the Crown Court is concerned, given the higher costs and reduced likelihood of defendants being able to pay for their own defence at that level, we see little value in pursuing the means test option until or unless it proves viable in the magistrates courts; judicious use of RCDOs might achieve the desired result of ensuring that convicted defendants who can afford to pay all or part of their costs should do so (see paragraph 7.4 below).

3.5   In the Discussion Paper we raised the issue of where critical decisions on the grant of criminal legal aid should be taken, noting that there is a trend in other jurisdictions towards moving the decision-making process away from the courts to the legal aid body.  Most of the responses that addressed the issue favoured leaving the decision-making to the judiciary. We have concluded that in the circumstances of Northern Ireland the judiciary are best placed to determine the “interests of justice test” in accordance with the Widgery criteria, both in terms of expertise and to avoid unnecessary bureaucracy; unless we hear views to the contrary, we do not propose to pursue this further. Financial eligibility should also be left to the judiciary as now for so long as the current test remains in place. However, if it is decided to introduce a fixed means test, with passported benefits and income from earnings to verify, then it would make sense for the role to be undertaken by the Legal Services Commission or an official of the court (as in England and Wales), possibly with a role for the Legal Aid Assessment Office; the key would be to devise a process which did not impact on the business of the courts. We will report further on this in June.

3.6   The other key decision to be made about legal aid in the magistrates’ courts is whether the legal aid certificate should include representation by counsel. The governing legislation is Article 28(2) of the Legal Aid, Advice and Assistance (NI) Order 1981 which provides:- “Free legal aid given for the purposes of any defence before a magistrates’ court shall not include representation by counsel except in the case of an indictable offence where the court is of the opinion that, because of circumstances which make the case unusually grave or difficult, representation by both solicitor and counsel would be desirable.”  An indication of the proportion of legally aided cases in magistrates’ courts where counsel is certified comes from Legal Services Commission data showing that in 2009/10 over 5000 bills were paid to counsel for this work (at a cost of around £3m), and some 23000 bills to solicitors (£8.5m). We do recognise that the jurisdiction of the magistrates’ courts in Northern Ireland includes the ability to hear more serious cases than summary courts in other jurisdictions, which would impact on the proportion of cases warranting certification for counsel here. We propose to research this further, taking account of the experience of other jurisdictions and any further inputs from stakeholders, before expressing  a view in our final report.

3.7   We have concluded that there should be no change to the arrangements whereby legal aid will fund a person held in a police station under PACE provisions to be advised in person or over the telephone by a solicitor of choice. We will explore further with the Legal Services Commission and the Law Society the practicalities of organising lists of duty solicitors throughout Northern Ireland to be available to advise defendants who are in custody but unable to identify a solicitor available to provide assistance. We understand that such arrangements already operate in Belfast and one or two other places. From a justice point of view, duty solicitor rotas, organised under the auspices of the LSC or the Society, would be an improvement on the current arrangements whereby in some areas it is the custody sergeant who advises on the availability of defence solicitors. A further issue to consider in relation to such an important role is whether solicitors on these rotas should meet particular standards of quality and/or experience in criminal work. We will also consider whether separate bespoke arrangements should be made, including accreditation, for children being questioned under PACE.

3.8   Our discussions and responses to the consultation lead us to believe that the current legislative framework for incentivising early guilty pleas is sufficiently flexible to enable appropriate sentencing discounts to be given where warranted. It is for the defendants’ lawyers to ensure that their clients are properly advised of their options and the potential consequences. One issue that we will pursue is a suggestion that there should be a single standard fee for magistrates’ court cases payable at the same rate whether there is a guilty plea or the case is contested3, as is the case in Scotland. We recognise that there may also be issues over the management of cases through the criminal justice process impacting on the speed with which they are resolved and on the accommodation of early pleas; these have been addressed by other reviews but we will take on board and consider any particular points raised with us.

3.9   In the Discussion Paper we noted the introduction in the Justice Bill of enhanced pre-court diversionary measures such as broadening the scope of fixed penalties and conditional cautions; and we noted the successful development of youth conferencing administered by the Youth Justice Agency (which can be used as part of the court process or as a diversionary measure). Inasmuch as such measures reduce the pressure on the courts and/or produce positive outcomes they are to be welcomed. Indeed, there may be a case for introducing a wider range of prosecutorial interventions along the lines of the “direct measures” available in Scotland where, in addition to fixed penalties and fiscal fines, the prosecutor has a range of diversionary options including compensation orders, unpaid work orders and warnings. We understand that some of these interventions do not result in the offender receiving a criminal record. From an access to justice perspective, it is important that those who are the subject of diversionary measures are clearly advised of the implications and of their right to independent advice; and, in restorative interventions, that victims are given a choice of whether or not to participate without having to concern themselves about whether their participation or otherwise will affect the offender’s position.  As suggested by a number of consultees, we have met with the Youth Justice Review Team with a view to identifying possible readacross in such areas as youth conferencing and restorative justice and the availability of advice to children and young people.

3.10   In accordance with bullet 4 of our terms of reference we will be seeking meetings with relevant organisations to discuss the role of community based arrangements for preventing and resolving disputes. This has relevance not only in addressing criminal behaviour but also, for example, in resolving local disputes between neighbours that have the potential to escalate into criminal behaviour or to become matters for the civil courts – particularly significant if low level civil disputes and injunctions were to be taken out of scope of legal aid (see paragraph 7.4 below).

3.11   We are aware of concerns about the cost of some cases involving allegations of theft or dishonesty in relation to low value sums, where the defendant elects for trial before a jury at the Crown Court. Given the implications for the individual of a criminal record, even for a minor offence, it is understandable that a defendant in this position might want to elect for trial by jury. Moreover it would hardly be in the public interest for the Public Prosecution Service to declare a policy of not prosecuting minor offences in the first place or for them to discontinue a case simply because the defendant had elected for trial; to adopt such an approach would be to send a message to offenders in low value theft cases that they could avoid conviction simply by electing for trial in the Crown Court.

3.12   The costs to the legal aid fund in the circumstances outlined in the previous paragraph are driven by standard Crown Court fees that for apparently minor offences can seem high but which are set on a “swings and roundabouts” basis, with the lawyers having to accept similar levels of remuneration for much more complex cases. On balance, we believe the standard fee approach to be fair and consistent with value for money considerations. Against this background, it might be difficult to sustain an argument for a lower scale of fees in “low value” cases where the defendant has elected for trial by jury - especially given that some such cases might be as complex as those involving much greater sums.  It may be that increased use of diversionary interventions along the lines of those identified in paragraph 3.9 could reduce the incidence of lesser offences going to the Crown Court; but such interventions only work where the defendant accepts responsibility for the offence. In our final report we will assess any available data on the incidence of election for trial by jury, the nature of the cases concerned and associated costs; but we do not believe that this review has the capacity to conduct the in-depth consultation and investigation that would be needed if the right to jury trial in these cases were to be called into question.  There is no easy answer to this issue but any ideas or points put to us about cases being tried in the Crown Court will be included in our final report.

Civil Legal Aid

4.1   In the coming weeks our focus on civil legal aid will be about how best to sustain and target quality legal services through partnership working between government departments, the private sector legal profession, the voluntary sector and, where appropriate, other private sector organisations. This has become a more challenging objective in the light of the financial position outlined at paragraphs 2.8 and 2.9 above.

4.2   In this part of the Progress Report we will work through each of the sub headings of section 4 in the Discussion Paper and then comment on the implications for the reform agenda currently being pursued by the Legal Services Commission, including the funding code, financial eligibility, statutory charge, registration scheme and remuneration order.

Advice, the voluntary sector and partnership

4.3   There is a network of private sector solicitors and an active voluntary sector providing advice and help across most parts of Northern Ireland; and private sector companies have been contracted by departments to assist in some specialist areas such as debt advice. Legal advice on any point of Northern Ireland law may be provided by solicitors to the financially eligible through the “green form” scheme; in 2009/10 some 9000 acts of assistance on civil matters were provided by solicitors through this scheme at a cost of about £900,000. Many solicitors also provide advice on a pro bono basis. The Department of Social Development (DSD) supported by the voluntary and community sector is well advanced in rolling out its strategy for the provision of generalist advice services across Northern Ireland. Generalist advice services are available at local level through local advice providers known as Area Advice Centres4.  Where a more specialist advice query is received the local advice provider will signpost to an appropriate specialist advice organisation. DSD provides funding in partnership with local councils for the provision of services. Councils are responsible for determining the provision required at local level, securing these services and seeking appropriate assurances that services delivered are fit for purpose. Citizens Advice Bureaux and organisations operating under the auspices of Advice (Northern Ireland) assist around 200,000 people annually who raise about twice that number of issues.

4.4   From comments made by consultees, the following factors are relevant to the review:-

4.5   The Discussion Paper noted the experience of other jurisdictions in establishing Community Legal Advice Centres (CLACs) and raised the possibility of a triage approach with a gateway (telephone or face to face) through which clients could be given immediate advice or referred on to the appropriate specialist provider. Given the extent of current provision in Northern Ireland, our concern to avoid unnecessary bureaucracy and running costs (which, based on the experience of others, we believe could be a feature of administering CLACs) and the importance of enabling direct access to sources of advice, we do not propose to pursue such ideas further.

4.6   We will review with the Law Society and the Legal Services Commission the workings of the green form scheme and whether it, or its equivalent under the Funding Code, should continue as an all embracing level of service supporting solicitors in giving advice on any point of Northern Ireland law. An alternative approach, involving replacement of the green form scheme, might be to subsume family-related advice5 into the family help scheme, while funding other priority areas through a mixed model approach that complements (but does not duplicate) existing provision across the advice sector and fills identified gaps. The following paragraphs outline the possible components of such a strategy based on an assessment of need and building on the existing infrastructure, while providing opportunities for innovative approaches in advice and help on matters with a legal or a potential legal aspect.

4.7   We will seek to develop a model for supplementing existing help and advice services, focusing on matters with a legal content, or with the potential to develop into a legal issue, in certain welfare-related and other priority areas such as housing, benefits, debt and education. Such help and advice might be delivered on a face to face basis, over the telephone or through the web, but could also include help at tribunals or at court on matters where full legal aid is not available (e.g. housing repossession cases). The funding mechanism could be through contract or grant, both of which are provided for under the Access to Justice (NI) Order 2003; the Law Centre contract for the provision of immigration and asylum services is an example of how this approach could work. A range of organisations might have an interest in applying or tendering for this work, including generalist and specialist advice organisations in the voluntary sector, private and voluntary sector organisations with an interest in telephone/web based advice and solicitors in private practice. In this context we note the importance of the Law Society waiver through which solicitors employed by voluntary sector and other organisations can provide legal services to clients on behalf of those organisations, although we should stress that we do not see the availability of legally qualified personnel as an essential in all cases for those seeking funding under this model.

4.8   In the current financial environment, we recognise the difficulties associated with funding additional service provision; and we must emphasise that these proposals are based on the assumption that existing funding streams for the advice sector from other sources will be maintained. While ending or modifying the green form arrangements might produce a relatively small sum to support the mixed model approach outlined above, it may not be sufficient to meet identified unmet need; and it would not be realistic to count on funding being redistributed to advice services from elsewhere in civil legal services where substantial savings are already required to stay within budget. In areas such as benefit provision, housing and education, we are likely to take the view that the relevant public authorities should contribute to funding independent advice services, especially where developments in their fields are likely to give rise to increased demand (e.g. benefit changes).6 This would also encourage the “whole systems” approach promoted in one submission to us, where organisations appreciate and act on the inter-relationship between quality service provision, error reduction, complaints mechanisms and legal challenge.

4.9   We have been impressed by points made to us about the role of the pro bono free 30 minutes advice offered by many solicitors at an initial consultation – enabling them to provide basic assistance, refer on to another source of relevant advice or, if the matter is in scope and financial eligibility is satisfied, pursue the matter in more depth through the legal aid scheme. This could become an integral part of the mixed model strategy, although we appreciate the point that pro bono work should not be seen as a substitute for legal aid. We will discuss this further with the Law Society.

4.10   Our focus here is on advice and assistance with some legal content and we see merit in the body responsible for administering legal aid playing a lead role in running a scheme of the type under consideration. However, given the number of advice suppliers and of funding streams associated with advice provision, it is axiomatic that inter-departmental machinery should be in place to help ensure that funding is used in the most efficient and effective way possible for the benefit of the public. It would help ensure that any funding scheme complements and builds on what is already in place rather than fragments the already complex set of arrangements – such a group would also be well placed to assess the impact of any changes in funding streams against agreed priorities and consider any corrective action if gaps emerge. We may be straying into areas that are beyond the terms of reference of this DoJ sponsored review but, given the salience of legal issues in the overall advice picture, we believe that the Department of Justice should seek an integral role in the DSD led Government Advice and Information Group. Through this IDG a sub-group might be formed to secure the “joined up” administration of a fund to support legal advice and assistance and pilot schemes along the lines outlined above.

4.11   This strategy would be dependant upon there being a clear picture of the requirements for advice and assistance and how they fit with existing supply. We will discuss with the Legal Services Commission and others what would be involved in updating the Legal Needs Survey of 2006, perhaps on a regular basis. However, it is questionable whether such an exercise would reveal anything significant that was not already apparent from the experience of advice organisations and lawyers working on the ground and we might suggest a quicker, cheaper and less formalised exercise to identify unmet need. As part of this we will address the position of children, older people and other groups.

4.12   Given the range of sources of advice and the importance of accessing the right providers, we were impressed by the case made by stakeholders for the development of an information pack (on-line and hard copy) to guide the public on the advice network and for use by the voluntary sector and solicitors in referring clients to appropriate specialist providers. Such a pack could be prepared and updated by the Advice and Information Group in conjunction with stakeholders. While we are inclined against a form of triage mechanism (paragraph 4.5 above), we would not rule out some form of telephone facility aimed at providing very basic assistance and guidance on where to seek more detailed advice; but we would need persuading of the value added that this would provide.

4.13   We will make firm recommendations on advice matters and the mixed model of provision and explore the funding implications in our final report.

Alternative Dispute Resolution (ADR)

4.14   Some concerns were expressed to us about terminology, in that the word “alternative” could be taken as implying that the discussion is about processes outside the justice system or that are intended to exclude the jurisdiction of the courts. However, we are clear that this is not the case; ADR is a widely used and understood term and we think that to start using new terminology now would give rise to confusion and misunderstanding.

4.15   From the several submissions that we have received on this subject and the outcome of a well attended workshop, it is apparent that there are several ADR tools available to the justice system both pre and post proceedings and in most types of civil case. In addition to the routine negotiations that take place between the legal representatives of parties with a view to settlement, they include mediation, conciliation, arbitration and collaborative law. We note the important role of pre-action protocols that have been instituted in a number of High Court case categories, focusing on early exchange of information and on the importance of considering mediation and other forms of dispute resolution as an alternative to litigation. We are in no doubt as to the interest of the judiciary in encouraging and facilitating early resolution of matters at issue, for example through the development of “early neutral evaluation” whereby a judge gives an indication of the likely outcome of a case to provide the parties with a basis for informed negotiation; the financial dispute resolution procedure operated by the Masters in ancillary relief cases is an example of this. In the course of the review we will not have time to address all of these devices in detail, but take encouragement from the fact that they are being operated to varying extents in Northern Ireland; we will draw attention to the importance of remuneration and costs regimes that incentivise their use.

4.16   For the purposes of this progress report, we will concentrate on mediation, conciliation and collaborative law, primarily but not exclusively in the family context7; this is an area of the justice system where both private sector practitioners and the voluntary sector can make big contributions. The Discussion Paper at paragraphs 4.14 and 4.15 sets out the benefits, characteristics and key issues to be addressed in developing mediation in Northern Ireland; and we would draw attention to the work of the Law Reform Commission in the Republic of Ireland whose report “Alternative Dispute Resolution: Mediation and Conciliation” provides a detailed framework for mediation and conciliation that we would largely endorse for Northern Ireland. We will address these issues in our final report  as well as the points noted below:-

4.17   In our final report, amongst other things, we are likely to explore the following courses of action that will help develop ADR, and in particular mediation:-

Family and Children

4.18   Family and Children Order cases accounted for about £22.5 million of the civil legal aid spend in 2009/10. We are approaching the review on the basis that most private, as well as public, law cases should if possible remain within the scope of legal aid. However, given the budgetary realities, this is an area where value for money considerations will weigh heavily, while continuing to safeguard the vulnerable.

4.19   As part of our consideration of public law children cases, we examined the childrens panel arrangements in Scotland – where disputed matters of fact are determined by the courts but care and supervision decisions are taken by a lay panel, usually in the presence of social services, parents, the child, an independent social worker and an official whose task is to ensure that correct procedures are followed. Lawyers are rarely present at the panel hearings. This contrasts with the situation in Northern Ireland where in the more difficult cases the number of lawyers in the court room can reach double figures, most of them paid for by legal aid; the details of the care plan can be the subject of considerable debate between legal representatives; and considerable concern has been expressed to us about the time taken to process these cases through the courts, albeit that there are differing views on the reasons for delay. For a number of reasons, not least the enormity of the legislative change that would be required, we do not propose that this review should consider further the replication of the Scottish panel arrangements here. However, for public law children cases we do propose to explore further the following:-

4.20   In private law matrimonial cases, we agree with submissions that stress the importance of safeguarding the interests of children and of ensuring that effective processes are in place to deal effectively and quickly with circumstances where domestic violence is an issue. From that perspective we welcome the decision to remove the upper earnings and income limits for people applying for legal aid in non-molestation order proceedings.  We have noted the important role played by the judge in divorce proceedings in satisfying him/herself that proper arrangements have been made for children of the marriage. We also appreciate the role played by the Master in addressing ancillary relief matters and the benefits that accrue from some 90% of cases being settled at an early stage following the Financial Dispute Resolution Procedure. Other general considerations in private law cases are to encourage early resolution of issues and an agreed way forward between the parties where possible, avoid over-representation in routine processes and limit the extent to which legal aid funds enable parties to prolong acrimonious proceedings.

4.21   We propose to investigate further the following issues:-

4.22   We agree with views that have been expressed to us that it would be wrong for a wide ranging review of this sort, carried out over a short timescale, to attempt to make recommendations about such fundamental issues as the role of adversarial processes in public law children cases. However, a theme of our review will be the significance of the substantive law as a driver for the quality (or otherwise) and cost of access to justice. We propose to raise the question of whether the time is right for a fundamental review of public and private family law, including such issues as the Children Order procedures in public law, the substantive and procedural law on divorce and the arrangements for securing the interests of children in public and private law cases. It is unlikely that the Review of Family Justice being undertaken in England and Wales under the chairmanship of David Norgrove will report in time for us to take it into account in producing our final report, but we will suggest that it is given close consideration to assess whether a similar exercise in Northern Ireland would be worthwhile. We recognise that DHSSPS (with its responsibilities for family issues  and legislation on children), as well as DoJ, will have a close interest in the merits of undertaking such a review. If a review of substantive law and the legal framework were to take place in this area, it would be an “in depth” exercise concentrating on the quality of outcomes for families and children as well as value for money; and any resulting measures and legislation would take time to implement. However, we are also of the view that in the meantime changes to the existing system could make a significant contribution to improving value for money without diluting access to justice or harming the interests of children.

Money damages cases

4.23   We will not repeat here the consideration of this issue given at paragraphs 4.21 to 4.30 of the Discussion Paper, although we will go into more detail in the final report, in particular to take account of the thorough and well argued submissions to the review on this topic. Over the next few weeks we will give careful consideration to a number of devices for sustaining, and in some respects improving, access to justice while (in the first three options outlined below) removing the bulk of money damages cases from the ambit of legal aid. The options, which are not necessarily mutually exclusive, include the following:-

The value of the first three options in access to justice terms is that they work with potential litigants whatever their means, including those who might fall just outside the financial eligibility limits for legal aid but whose circumstances are such that they cannot easily afford legal representation. We will explore the question of how investigatory work by solicitors to establish the strength of a case would fit with the schemes mentioned above. We do not propose for purposes of this review to pursue further the option of a statutory body to determine quantum of damages in personal injury cases along the lines the Personal Injuries Assessment Board in the Republic of Ireland which appears to be working successfully there, but was established in the light of circumstances specific to that jurisdiction. We do not see referral fees as having a role in any of the options outlined above.

4.24   We will give separate consideration to the position in relation to clinical negligence where the complexities are such that some cases might not easily fit the mechanisms outlined above; there is an argument for retaining at least the higher value cases in this category within the legal aid fund. We will also consider whether this is the sort of specialist area where clients and the courts might benefit if solicitors carrying out publicly funded work were required to meet the requirements of an accreditation scheme. We remain of the view that, especially at the lower end of the spectrum of complaints and issues, the health authorities and legal representatives on both sides should be attuned to the possibilities afforded by complaints procedures, the Ombudsman and other means of avoiding litigation. Through mediation or other devices, there may be scope for explanations and/or apologies at an early stage that will not be taken or used as admissions of liability in any future litigation (paragraph 4.17 above). For cases that go to the High Court we note that the pre-action protocol for clinical negligence litigation lays emphasis on the early acquisition and provision of medical notes and records and on the potential for alternative dispute resolution.

4.25   It is estimated that the removal of most money damages claims from the scope of legal aid would save the Fund up to £1.2 million and make a contribution to reducing running costs at the Commission.

4.26   At the time of writing we understand that the Minister is minded to increase the jurisdictional limit of the county courts from £15,000 to £30,000 with a consequential increase in the jurisdiction of the small claims courts (paragraph 4.5 of the Discussion Paper). This fits well with the thrust of the review and with positive feedback we have received from a number of quarters about the work of the county courts, in particular the scale costs regime which is seen as proportionate and transparent.  However, we have also received comments in relation to county courts about (inter alia) the lack of information provided on the plaintiff’s civil bill, the absence of detail in documentation served by the defendant and suggestions that pre-action protocols should be applicable at that tier. Such points are germane to the issue of pre-court or early resolution of cases and, with the extension of jurisdiction, merit serious consideration. They were touched on in the report of the Civil Justice Reform Group (2000) chaired by Lord Justice Campbell (paragraph 6.7 below).

Administrative law

4.27   In our final report we will refer to the Ombudsman as a source of resolution of complaints concerning maladministration (which can include matters relating to the clinical judgement of health professionals). A key point here is that aggrieved individuals should have a clear understanding at the outset of the process and possible outcomes of the courses of action open to them. For example the Ombudsman does not award compensation in the way that can be secured through the court process but can make a recommendation for an issue of an apology, change in procedure or practice or a consolatory payment to reflect inconvenience suffered by the applicant.

4.28   We will not be recommending an extension of full legal aid to cover representation at tribunal hearings other than in circumstances where personal liberty is at stake. However, we will keep in touch with research that is taking place into the availability of pre-hearing advice and guidance as follow up to the review “Redressing Users’ Disadvantage” published by the Northern Ireland Law Centre in June 2010. We will address the issue of advice and help before and during tribunal hearings in the context of the mixed model of advice provision (paragraph 4.6 above).

4.29   Subject to any comments we might receive we do not intend to question the retention of judicial review within the scope of legal aid or the proposed criteria to be taken into account in deciding whether to grant a certificate for these cases under the terms of the Funding Code (see paragraph 4.38 of the Discussion Paper).

Exceptional Grants and inquests

4.30   We wish to discuss further with the Commission and others the workings of the exceptionality arrangements whereby, on the authorisation of the Minister, a grant of legal aid can be made in a case or cases that would not otherwise qualify. This does not fit easily with the principle of independence of decision-making but it is clear to us that there is a case for procedures enabling legal aid to be provided in such circumstances where this would serve the interests of justice, especially if the scope of legal aid is to be further restricted.

4.31   We will recommend that inquests, where Article 2 issues are at stake, should be brought within the scope of mainstream legal aid and not reliant on exceptional grant arrangements.  In this context there are further issues to address that will be covered in our final report, including the types of case that bring Article 2 into play, the way in which financial eligibility rules are applied and the nature of the relationship with the deceased that would qualify for legally aided representation.

Expert witnesses

4.32   Since publication of the Discussion Paper problems over the appointment of experts in publicly funded cases of all types have been raised with us on frequent occasions. Expense, delay to court processes while authority is sought to fund their use and quality have been the most frequently mentioned points and it is clear that these problems are experienced by each of the jurisdictions in these islands. The Law Society in Northern Ireland is actively engaged with this in developing its Expert Witness Service (providing details of available experts across all types of work) and is pursuing the idea of a “lead solicitor” to identify and instruct experts in public law proceedings. And we have had an interesting suggestion that psychologists and other professionals employed by Trusts might as part of their duties provide independent expert assistance in court cases that do not involve their employers (there might be concerns about their independence in a small jurisdiction like ours but there could be opportunities for deployment on a cross border basis). At a recent conference of legal aid authorities from the UK and Ireland this was identified as an issue where co-operation between jurisdictions would benefit all.

4.33   We doubt that the review can add much value on expert witnesses before publication of our final report. We suggest that steps be taken now by the Department of Justice to identify a resource that can dedicate time to dealing with this problem, covering, amongst other things, the following issues:-

This project should take account of preparatory work on these matters carried out in the Legal Services Commission before responsibility for them was handed to the Courts and Tribunals Service.

The Reform Agenda

4.34   We will discuss with the Commission the implications of the review for the extensive reform agenda that they are progressing under the auspices of the Access to Justice (NI) Order 2003. The main components of the programme, outlined in paragraphs 4.3 and 4.4 of the Discussion Paper are:-

4.35   The content of the Funding Code and the processes it supports will be significantly affected by the outcome of this review and the same may apply to work on financial eligibility, the registration scheme and remuneration. We will discuss with the Commission the implications for its work programme. We are unlikely to make recommendations that will impact on the direction being taken in the statutory charge reforms.

4.36   We understand that the Commission intends to consult on measures to reduce the incidence of certification for two counsel in civil cases. We should like the opportunity to discuss the content of a consultation paper on this with the Commission. Such an initiative would be consistent with the approach being taken in this review and, if it proceeds in the near future, should take account of comments made earlier in this paper in the context of representation in public law children cases (paragraph 4.19 above).

4.37   As noted in the Discussion Paper (paragraph 4.42) we endorse the view that there is a need to change the current arrangements for appeals to panels of practitioners against decisions to refuse legal aid, certification for senior counsel and against decisions on remuneration. The current system adds to running costs, can cause delay and, while the members of panels have made a major and welcome contribution over the years, it is questionable whether panels consisting solely of practitioners should be taking decisions or making recommendations on these matters. We have noted the Commission’s proposal for a three person appeal panel with independent chair, practitioner and senior staff member. Also, we are conscious of the Scottish arrangements which are limited to internal review of cases at the request of applicants and a procedure (infrequently used) whereby applicants can apply to a sheriff for a decision on whether they should be legally aided to apply for judicial review if dissatisfied with the internal review. In England and Wales, appeals are considered, usually on paper, by an independent funding adjudicator (a lawyer, sometimes retired, and often not a legal aid practitioner); while in Dublin, appeals are heard by the Chief Executive sitting with a legal member of the board.  We will consider these models further, but will endorse the giving of reasons for decisions to refuse legal aid.

Service providers, Quality and Regulation

5.1   An integral part of any consideration of access to justice has to be the supply base. In Northern Ireland most publicly funded legal services are provided by private sector solicitors and barristers. We are in no doubt that the capacity of a healthy independent legal profession to help sustain access to justice and safeguard the rule of law remains of critical importance.

5.2   However, there are other important players in this arena as is reflected in our terms of reference referring us back to the Minister’s speech of 7 June 2010 where he talks of a vision for public legal services which “provides a much wider choice in the sources of legal help available to those in need. Instead of simply paying people to go to law, it should also be possible to bring law to the people through advice centres and legal clinics. You only have to look at the excellent work being done by Citizens Advice, Advice (NI) and the Law Centre to see what I have in mind”. It is to help achieve this vision that we endorse the mixed model and partnership approaches that lie behind paragraphs 4.3 to 4.13 above and in our final report will support a model that uses the full range of procurement options envisaged in the Access to Justice (NI) Order. That means paying fees for certified and authorised business as now, grant aiding or contracting with mediators and generalist or specialist advice providers (often employing non lawyers as expert advisers as well as lawyers operating under the Law Society waiver) and adopting a mixed approach in some areas, as is the case with asylum and immigration.

5.3   Unless a case is made to the contrary, we do not propose at this stage to make recommendations on contracting as the base model for procuring services from private sector lawyers or on the provision of publicly funded services by directly employed legal staff – albeit that such models work well in the particular circumstances of other jurisdictions.

5.4   In the Discussion Paper we raised the issues of alternative business models (ABMs) and regulation in the context of the 2006 review chaired by Sir George Bain, “Legal Services in Northern Ireland – Complaints, Regulation and Competition”. While this report did not favour the introduction of ABMs or the separation of regulation from representational functions along the lines of the Clementi review in England and Wales, it did recommend measures to enhance oversight of complaints handling and regulation by the Law Society and Bar Council through the appointment of a Legal Services Oversight Commissioner. Legislation to give effect to the recommendations of the Bain review has not yet been enacted. In the intervening period progress has been made with implementing Clementi in England and Wales and legislation has been passed in Scotland11 opening up the prospect of alternative business models there and addressing a number of regulatory issues; and such issues are being pursued in Dublin.

5.5   We do not have the capacity or time to address the detail of the issues covered by the Bain review but will in our final report draw attention to the need for government to respond definitively to its recommendations. We will stress the importance of an informed Department of Justice having a key role in this area, able to satisfy itself that the arrangements are sufficient to ensure that the regulatory structures will continue to operate solely in the public interest. We will comment on the size, structure and geographical spread of the legal profession, on which we have received helpful submissions from the Law Society and Bar Council. However, while we will recognise that practitioners are facing a challenging economic environment, not made any easier by the reduction in legal aid funding, we do not see it as an objective of publicly funded legal services to sustain the network of providers unchanged. The legal sector, as others, will adapt in the light of the changing business environment. What will be important is for DoJ to maintain a constructive dialogue with the profession so that it has a full understanding of the legal services market and the likely impact on it (and on access to justice) of policy and operational options that are being considered.

5.6   We have further work to do on the issue of quality as a component of value for money in service provision. While the complaints and regulatory framework operated by the Law Society and Bar Council provide a level of assurance to the client, it is right that the body responsible for administering large sums of public money on legal aid should have systems in place to secure appropriate quality standards. We see the Registration Scheme as the mechanism for addressing this issue in a proportionate manner and wish to discuss further with the Legal Services Commission, the Law Society and the Bar Council the scope for some of the following mechanisms to be deployed in conjunction with registration:-

We will examine the tender and contract documentation used by the Legal Services Commission in England and Wales, not with a view to its introduction here, but to benchmark the quality and standards required in that jurisdiction.

5.7   At the time of writing, we had just seen the draft inserts in the Justice Bill providing for rights of audience of accredited solicitor advocates in the High Court and Court of Appeal and enabling the payment of enhanced legal aid fees to such solicitors when acting as advocates in the lower courts (in the High Court fees are a matter for the Taxing Master). In principle we welcome this development but would note the following issues in relation to fees and value for money:-

There are many other ramifications including standards, quality control and the impact on the legal profession itself. We note that the Department of Justice is given a key role by the legislation in consulting with the Attorney General before deciding whether to approve regulations relating to solicitor advocacy made by the Law Society.

5.8   The DoJ and Legal Services Commission will clearly want to progress this matter in consultation with the Law Society, Bar Council and others; and we do not think that it would be helpful for the review to “second guess” that work. However, we will take account of and comment on views expressed to us about any implications for access to justice that arise; and we will consider the implications for remuneration in legally aided cases, including the circumstances where it might be appropriate to pay one fee to the solicitor (who would decide whether to brief and pay an advocate out of that fee) rather than make separate payments to solicitor and advocate (see also paragraph 7.4, second bullet below).

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

6.1   Paragraphs 6.1 to 6.16 of the Discussion Paper contain a fairly detailed assessment of the origins and development of the Legal Services Commission as an NDPB and of the considerations that we will take into account in making recommendations for the future. We have received submissions from the Commission and from staff representatives and will want to have discussions with Commissioners, senior management, staff and other stakeholders before coming to firm views about structures. As noted in the Discussion Paper, in England and Wales the Legal Services Commission is being converted into an agency while responsibility for policy matters will lie clearly with the Ministry of Justice. As with other aspects of the review, we will take account of developments in that and other jurisdictions but must stress the importance of solutions that are suited to the particular circumstances of Northern Ireland. With these thoughts  in mind, we thought it might be worth identifying some key factors that will influence our thinking on the relationship between the service delivery body and the core Department of Justice here:-

6.2   Some of these considerations pull in different directions but we do believe that it is possible to devise governance arrangements that take them all into account. A key decision will be whether the delivery body for legal aid is outside the department (as now) or becomes a part of it, albeit with some form of arms length status. The Commission has suggested a hybrid model, which we will investigate further. There are likely to be a range of different costs and savings associated with any restructuring of the Northern Ireland Legal Services Commission and we will consider these further with the Department before publishing our final report.

6.3   Any change in the status of the Legal Services Commission will require primary legislation. In order to facilitate effective management and planning, and to alleviate any uncertainty on the part of staff and stakeholders, we think it important that firm decisions on structural matters follow quickly on from our final report and with a clear path towards implementation from the outset.

Policy on Access to Justice

6.4   As foreshadowed in paragraphs 6.17 to 6.20 of the Discussion Paper, we are minded to recommend the integration of all aspects of criminal and civil legal aid policy, and sponsorship of the service delivery body, within a strong access to justice directorate in the Department of Justice.  The creation of such a directorate would mean transferring some functions in from the Courts and Tribunals Service (leaving it as an operational delivery body) and DFP (substantive and procedural civil law matters and regulation of the legal profession). This would facilitate a holistic approach to policy development in civil and criminal law and on access to justice matters while helping ensure that full account is taken of the impact on legal aid and access to justice of policy initiatives and actions elsewhere in the justice system. We would expect such a directorate to be proactive in insisting on legal aid impact assessments on legislation and policy initiatives by the DoJ and other departments. Where such assessments revealed that policy or legislative initiatives would create additional demand for publicly funded legal services, then it would be for the sponsoring department to transfer the necessary funds to the legal aid authorities to enable the demand to be met.

6.5   Unless asked to do so, we do not propose to go into much detail in our final report about how the vision outlined in the previous paragraph should be achieved or about the precise dividing line between operational and policy responsibilities. The DoJ has employed consultants to advise on the critical path towards achieving the goal and on the organisational implications and we do not wish to duplicate their work. However, our lack of involvement in the detail should not detract from the importance we attach to early progress in this area.

The Civil Justice Reform Group and other reviews

6.6   Our terms of reference ask us to examine previous review work and assess what recommendations remain relevant. With that in mind, we will in our final report make reference to “Public Benefit and the Public Purse”, the consultation document issued by the Northern Ireland Court Service in 1999 that provided the basis for the current legal aid arrangements that apply in this jurisdiction. We have also asked the Northern Ireland Legal Services Commission to provide us with an update on the implementation of recommendations flowing from reviews carried out after its inception in 2003, notably the Fundamental Legal Aid Review, the Landscape Review and an internal review carried out in preparation for devolution.

6.7   A number of responses to our Discussion Paper have referred back in positive terms to the work of the Civil Justice Reform Group under the chairmanship of Lord Justice Campbell and which reported in 2000; some have suggested that recommendations from that exercise that have not been implemented should be revisited. We are grateful to the Courts and Tribunals Service for providing us with an update on this demonstrating that well over half of the recommendations have been actioned. Many of the other recommendations concerning judicial case management are being addressed in a variety of ways and are not matters for our review. However, we will discuss further with the Courts and Tribunals Service outstanding recommendations that might be relevant to the early resolution of cases and to the change in the county court jurisdiction (paragraph 4.26 above).

6.8   In our final report we will consider one particular recommendation of the Campbell Report – the creation of a Civil Justice Council 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 it of proposed legislation or policy changes. Members of the Council would be drawn from the judiciary, practitioners and other interest groups. We recognise that, particularly in a small jurisdiction, the creation of a plethora of inter-agency groups and committees can result in time consuming commitments drawing key people away from service delivery, with associated opportunity costs and staff costs through the provision of secretariat services. Any new body must therefore be justified in terms of the outcomes and benefits it brings. In our final report we will consider this recommendation in that spirit, including whether there might be other means of achieving the stated objective (for example through formal or informal machinery established under DoJ auspices, which could have the added advantage of increasing consciousness of civil justice in the department).

Living within the Budget

7.1   Our terms of reference require us to “make proposals… within the available budget… including the identification of possible future savings to reduce the legal aid budget”. We have already noted that the budget of the Northern Ireland Legal Services Commission in 2013/14 (the first year in which our recommendations can realistically be expected to have a financial impact) was reduced by almost £4 million after the review was established. A realistic approach must recognise that in the current financial climate all public services are facing reductions in expenditure. However, we feel bound to record our view that the budgetary reduction has made it more difficult to achieve the first two limbs of our terms of reference and that, at a time of recession when demand for advice and assistance is increasing, it is difficult to conceive of further cuts being made within the same timescale without affecting the scope and/or quality of access to justice.

7.2   We also wish to reiterate that in a demand-led service, while financial forecasting is of critical importance, financial planning must allow for the possibility of fluctuations in spend year on year that are not within the direct control of the legal aid body. Some of the contributory factors to such fluctuations are recession related issues, pressures on families and changes in crime and/or detection rates. For example, the police budget has been increased by some £245 million over the next four years.  If this results in an increase in prosecutions for serious offences, that will impact on the legal aid spend; it would be perverse if this had to be accommodated through cuts to the civil legal aid budget. Notwithstanding the uncertainties, we will strongly endorse the value of effective financial modelling and forecasting, carried out jointly by those responsible for service delivery and the core department, so that trends can be identified at the earliest possible stage and the impact of policy change or external factors on spend can be measured. As noted above (paragraph 2.7) the introduction of resource accounting and budgeting will assist in financial planning and management.

7.3   As noted above (paragraph 4.1) we are working on the basis of having to save around £5 million in the civil legal aid budget and running costs by 2013/14; the detailed financial data supporting this position will be available in our final report. Some of the ideas being examined in this review will produce a reduction in spend, for example:- taking most money damages cases out of scope; reducing the number of legally aided cases where two counsel appear; a shift towards alternative dispute resolution; cost limits in matrimonial cases etc. We also expect to see a reduction in running costs through efficiencies, reducing the number of money damages cases in the system, streamlining the appeals process, shared services where they can be implemented, changes to the green form arrangements and standard fees. To balance these reductions there will be some increase in expenditure, for example administering the registration scheme and piloting family mediation services; also there will be non-recurring up front costs if the IT strategy is to be implemented (with the scope for producing substantial efficiency savings in the future).

7.4   We will work with the Legal Services Commission to produce for our final report estimates of the financial impact of the matters noted in the previous paragraph. Our judgement is that taken together, the overall impact should be a significant saving, but not enough to meet the £5 million shortfall, especially if during the recession demand continues to increase. In order to secure further savings we will examine the following possibilities which might be applied in combination:-

7.5   Most of the options for cost reductions listed in section 7 of the Discussion Paper have been addressed earlier in this report. Of the others, we will give further consideration to attachment of earnings/benefits to fund contributions, interest from client accounts, funds liable to seizure under the Proceeds of Crime legislation, European/lottery funding and voluntary contributions from the financial services industry to help support advice services in debt and re-possession cases. We recognise from the submissions we have received that there practical problems and issues of principle in relation to such ideas and we will take these views into account.

7.6   We have noted concerns, reported in the press on 28 February 2011, about the amounts spent on legal services by government departments and associated bodies. Some of this expenditure will have been on litigation where the other parties are private individuals who are legally aided – this means that decisions taken separately by the department concerned or the Legal Services Commission on such matters as levels of representation and the merits of taking a case to court can impact on two expenditure streams - the department’s own legal costs and on the legal aid fund (see the first bullet in paragraph 4.19 above for an example of where this could occur). It reinforces the importance of effective advice and complaints mechanisms, a commitment within government to seeking early resolution of disputes through negotiation and/or ADR and of a proportionate approach to securing legal representation – as well as pre-action protocols and court processes that facilitate such approaches. We will comment further on the implications of this for legal aid spend and access to justice in our final report.

Annex A

Submissions Received

36 Organisations
5 Individuals

Footnotes

1.   Paragraph 3.2 of the Discussion Paper

2.   Reasonable but not excessive remuneration; broad comparability with other jurisdictions and the Public Prosecution Service; attract and retain quality and expertise, while ensuring supply into the future; standard fees that are straightforward to administer; fees that incentivise good practice; affordability.

3.    The Magistrates’ Courts and County Court Appeals (Criminal Legal Aid)(Costs) Rules (NI) 2009 provide for three levels of standard fee for guilty plea 1 (where the plea is made before listing), guilty plea 2 (where the plea comes after listing but before the trial) and contested cases.

4.    Opening Doors (2007), The Number and Location of Area Advice Centres (2009) and Consultation on Guidance on the Provision of Local Generalist Voluntary Advice (2011).

5.    In 2009/10 about 2500 green form cases concerned matrimonial or children issues at a cost of around £255,000.

6.    The Scottish Executive has provided the Legal Aid Board there with £3 million over two years to support grants to organisations and practitioners providing legal advice services on matters relevant to the recession.

7.    In our final report we will explicitly draw attention to the importance of ADR in other areas, including commercial cases.

8.    DHSSPS has been to the fore in supporting Family Mediation (NI) in its provision of free pre-court mediation.

9.    See also a report prepared in 2006 under the auspices of the Children Order Advisory Committee – “To Protect and to Serve: The Separate Representation of Children in private Law Proceedings

10.    Review of Civil Litigation Costs in England and Wales, December 2009

11.    The Legal Services (Scotland) Act 2010