Access to Justice Review Northern Ireland

The Agenda

November 2010

Table of Contents

  1. Introduction
  2. Access to Justice – Guiding Principles
  3. Criminal Legal Aid
  4. Civil Legal Services
  5. Service Providers, Procurement, Quality and Regulation
  6. Structures for administering legal aid and developing policy on access to justice
  7. Options for further budgetary savings
  8. Other jurisdictions

Introduction

1.1 This document sets out the ground to be covered in the Review of Access to Justice in Northern Ireland announced by the Minister of Justice on 13 September 2010. A more detailed and in depth discussion of the issues can be viewed in the main discussion paper on our webpage at www.courtsni.gov.uk/en-GB/AboutUs/A2JReview/.

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:-

1.3 Following research and meetings with interested parties in the legal profession, government and the voluntary sector, we have produced this agenda-setting document and the discussion paper to help focus debate on the key issues. We will be conducting meetings and workshops with a view to producing an interim progress report by the end of February 2011 and a final report by early Summer 2011. We would welcome written submissions on issues outlined in this document and on any other relevant matters by 31 January 2011.

Written comments and submissions should be made to 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

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.

When completing the final report we may wish to refer to written submissions or issues raised at meetings. If anyone would prefer that their points are made in confidence, please ensure that this is clearly stated.

Access to Justice – Guiding Principles

2.1 In progressing this review we have been enjoined by the Minister to go back to first principles and build from there. There are some key guiding principles that we wish to put on the table for discussion:-

2.2 In conducting the review we will take account of the availability of finite resources and the need to stay within budget. The following table gives an indication of trends in expenditure on criminal and civil legal aid and the running costs of the Northern Ireland Legal Services Commission (in £ million).

03/04  04/05  05/06  06/07  07/08  08/09  09/10
Civil  21.4  26.4  27.4  27.7  27.5  32.5  36.9
Criminal  29.4  32.6  30.6  41.7  44.5  50.6  60.0
Running costs  3.8  5.6  5.1  5.5  5.7  6.7  7.4
Total  54.6  64.6  63.1  74.9  77.7  89.8  104.3

Under the devolution settlement, the budget for 2013/14 is £79 million.

Criminal Legal Aid

3.1 Criminal legal aid is available to support the provision of legal advice for arrested persons in police stations and legal representation in the magistrates’ courts and Crown Court where it is held to be in the interests of justice to grant legal aid and the court considers the defendant to be of insufficient means to pay. We do not propose to question the scope of criminal legal aid which is consistent with the requirements of Article 6 of the European Convention on Human Rights.

3.2 In parallel with this review, the Northern Ireland Courts and Tribunals Service is pursuing a number of reforms to criminal legal aid. They include: the reduction of standard fees payable to solicitors and barristers; subsuming very high cost cases into the standard fee arrangements (VHCCs were largely responsible for the big increase in criminal legal aid costs in recent years); new criteria for determining when legal aid should pay for two counsel in the Crown Court; a power to introduce a new, more detailed means test for determining eligibility for criminal legal aid; and a power requiring convicted defendants who are in funds to pay the cost of all or part of their legal aid.

3.3 Given the importance of urgent action on expenditure, we do not propose that our review should impede progress towards implementation of the initiatives outlined in paragraph 3.2 above, the combined effect of which should be to bring spend within the reduced budget for 2013/14. However, we will examine the following issues, as well as others that may be drawn to our attention:-

3.4 In all that we do we will be conscious of the central importance of victims in the criminal justice system and will welcome views on issues under consideration from the victims’ perspective. However, we suggest that most matters concerning the interface between victims and the criminal justice system would be best pursued through the Department of Justice consultation on a draft Code of Practice for Victims of Crime.

Civil Legal Services

4.1 At present financially eligible persons may secure publicly funded legal advice on any point of Northern Ireland law and, where there are reasonable grounds for taking action, legal representation in most civil matters. A number of reforms are well advanced in relation to civil legal aid and, for the most part they provide a framework within which change can take place. We are working on the basis that they will proceed towards implementation, including:-

4.2 The remainder of this section will briefly identify the main areas of civil legal services on which the review team will be likely to concentrate. For more detailed discussion of the issues, please refer to the discussion document identified in paragraph 1.1 above.

4.3 We will examine the feasibility of building on existing infrastructure to develop an integrated system of tiered advice involving a partnership between the voluntary and private sectors – providing access to generalist advice at the local level or via the telephone and web, with arrangements for referral on to specialist providers and, where necessary, legal practitioners. There are models for this approach in other jurisdictions. It would require close co-operation with existing voluntary sector providers, local government and a range of government departments, especially DSD which has responsibility for policy in relation to the advice sector generally. Such an approach would have implications for the legal help concept envisaged in the Funding Code.

4.4 Alternative Dispute Resolution embraces a number of techniques, including mediation and (in the family law context) collaborative law. Properly deployed they can resolve issues (long) before they reach court, save time and costs and produce outcomes to which all parties can commit without going through the stress of a court process (which is of particular benefit to children in private law family cases). The review will address the following issues in particular: identification of cases suited to ADR and referral mechanisms; developing the infrastructure for supply of these services; quality control; the role of legal aid in funding ADR where eligible parties are involved; and incentivising recourse to mediation.

4.5 Public and private law Children Order cases and matrimonial cases account for a sizeable proportion of the volume and spend on civil legal aid. Some of the issues that we will examine in this area include:-

We will look at other jurisdictions, including the use of Children’s Panels with their less adversarial approach in Scotland and the Review of Family Justice being undertaken in England.

4.6 Under the proposed Funding Code, money damages cases remain within the scope of legal aid, but with greater restrictions than now on funding investigative work for lower value claims and with the likelihood of fewer such claims being granted legal aid. This remains a viable way forward but we also propose to examine other options that would take money damages out of scope, saving £1m to £2m per annum for the Fund (in relation to cases lost where the Fund pays for lawyers’ fees and expenses) and also some Legal Services Commission running costs. Such schemes can enhance access to justice as they are equally applicable to those who would not have qualified for legal aid:-

There may be arguments for treating, at least higher value, clinical negligence cases separately given their complexity; and, if this category of case is to be legally aided, should funding be limited to practitioners with expertise and experience in this field? For personal injuries claims generally we will look at the workings of the Personal Injuries Assessment Board in the Republic of Ireland, responsible for processing all claims for personal injury (other than clinical negligence) for a small charge to the claimant.

4.7 In the field of administrative law, effective complaints handling within public bodies and the role of the Ombudsman are relevant to our consideration of alternative ways of resolving disputes, including in clinical negligence cases. Tribunals are an integral part of the administrative justice landscape. They have been the subject of scrutiny in a recent review “Redressing Users’ Disadvantage” published by the Northern Ireland Law Centre and which is being followed up by a Tribunals Reform Reference Group convened by the Courts and Tribunals Service. We do not propose to duplicate this work but will consider the extent to which pre-hearing advice and help at hearings (already being provided quite extensively in some areas) improves the quality of access to justice on the part of users.

4.8 Judicial review is central to administrative justice and, in view of its importance in safeguarding the individual against arbitrary decision-making, it is a strong candidate for remaining in scope whatever the financial pressures. The considerations to be taken into account in deciding whether to grant legal aid in judicial review cases have been the subject of consultation by the Legal Services Commission in the context of the Funding Code, but we will consider any additional points put to us on this.

4.9 Other issues relevant to civil legal services that we will consider include:-

Service Providers, Procurement, Quality and Regulation

5.1 The mixed model or partnership approach to service provision raises issues about procurement and we will consider a number of possibilities, including maintenance of the current model for the purchase and supply of legally aided advice and representation by the client’s chosen solicitor and barristers in the private sector. We will look at the implications of a competitive tendering and contracting model in certain areas, particularly where the voluntary sector may be involved. Grants may have a role, especially to kick start any pilot services.

5.2 We will want to take account of the implications of any recommendations arising out of this review for the maintenance of an independent, efficient and effective legal profession and accessibility to that profession on the part of clients – although we recognise that for a number of reasons geographical proximity of services to clients may not be quite as significant an issue now as in the past.

5.3 Value for money features strongly in our terms of reference and the “value” side of that equation includes quality of service in publicly funded cases. It is for discussion how far this is a matter for the Legal Services Commission to address or whether the Commission should rely on the regulator to set and ensure compliance with quality standards. Mechanisms through which the Commission could satisfy itself in relation to quality include: peer review; accreditation of practitioners in specialist areas; quality standards; codes of practice; and file review and audit. If any of these were to be adopted they would need to be proportionate to the risk, be cost effective and avoid unnecessary bureaucracy. Contracting does provide an opportunity for setting and enforcing standards but statutory provision for a registration scheme, with registration being a pre-condition for suppliers wishing to provide legally aided services, is also a tool for establishing quality control.

5.4 Effective regulation of the legal profession supports access to quality justice services. In Northern Ireland this was the subject of a report in 2006 by a review chaired by Sir George Bain, “Legal Services in Northern Ireland”. We understand that legislation has been prepared following that review to strengthen oversight and complaints handling procedures and we do not propose to go over that ground again. However, another aspect of the Bain report was its recommendation against opening up the legal services market to alternative business models. We would be interested in views on whether, with the passage of time and experience in other jurisdictions, there is a case for re-opening the debate about, for example, permitting Legal Disciplinary Practices where solicitors and barristers could work in partnership or enabling legal services to be provided by externally owned firms.

5.5 We will be open to discussion about the use of solicitor advocates at all levels of court and their fair remuneration in publicly funded cases.

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

6.1 The Northern Ireland Legal Services Commission was established by the Access to Justice (NI) Order 2003 as an executive Non Departmental Public Body, taking over the administration of legal aid from the Law Society. It was given responsibility for developing the Funding Code, although its sponsor in government, the Courts and Tribunals Service, also had a policy role in civil legal aid and was responsible for all policy on criminal legal aid. Staff numbers in the Commission have grown from 101 when it started to 160 now, in part due to its taking on new functions and having to meet new accounting requirements; the trend in running costs is shown in the table at paragraph 2.2. Account should also be taken of the costs of the sponsor where policy development and holding the Commission to account are the responsibility of some 22 staff at an annual cost of around £850,000.

6.2 There have been reviews of the Legal Services Commission in the past, notably the Landscape Review in 2007, but none of them addressed in any detail whether the structural arrangements were satisfactory. We intend to examine the strengths and weaknesses of the current structure and address the following main issues: where responsibility for policy should lie and whether the administration of legal aid should continue to be the responsibility of a body at arms length from government. The recommended structure will follow from the answer to those questions. In England and Wales (and New Zealand) it has been decided to move the legal aid body from NDPB to agency status within the sponsor department, but with special arrangements to safeguard independence of decision-making in legal aid applications.

6.3 Some of the arguments for and against change in structures are analysed in the discussion document (see paragraph 1.1 above). Whatever the outcome of that debate, we will want to explore with the Commission business processes and staffing levels to ensure that the organisation is able to work to maximum efficiency. Also, we would wish to examine the costs and benefits accruing from an ambitious programme of IT development aimed at better supporting business processes and facilitating on line processing of applications for legal aid and financial transactions.

6.4 The review will address where in the Department of Justice responsibility for legal aid policy, and for sponsorship of the body administering legal aid (if there is an arms length body), should lie. The organisational arrangements should reflect the inter-relationships of a range of functions including, for example, legal aid, policy on access to justice generally, ADR, regulation of the legal profession, substantive civil and procedural law and partnership with stakeholders and other government departments on civil justice matters. It is particularly important that arrangements are in place to ensure that when proposed changes to policy or the substantive law are considered, full account is taken of any cost implications to the legal aid fund through legal aid impact assessments.

6.5 In the wake of the Woolf reforms to civil justice in England and Wales the Lord Chancellor appointed Lord Justice Campbell to chair the Civil Justice Reform Group to consider a range of issues concerning access to civil justice. The Group reported in 2000. We will engage with the Courts and Tribunals Service on the extent to which recommendations in that report have been implemented and consider whether there are outstanding matters within our terms of reference. One particular recommendation that we will explore further is for the establishment of a Civil Justice Council under the chairmanship of the Lord Chief Justice and with membership drawn form the judiciary, the legal profession, the consumer affairs and voluntary sectors and academia. Its remit, inter alia, would be to advise the judiciary and government on the accessibility and development of the civil justice system and on the impact on it of proposed legislation and policy changes.

Options for further budgetary savings

7.1 Our terms of reference require us to consider how further savings might be made in future in order to reduce the legal aid budget. Moreover we have to consider how savings might be made in order to fund any recommendations from this review that might carry an additional cost. Forecasting expenditure in this demand led environment and the impact of legal aid policy changes on costs is notoriously difficult, but we will work with the Commission and Courts and Tribunals Service to test the projections to 2013/14.

7.2 Some strategic options for reducing expenditure fall within the following categories:-

7.3 These ideas are of varying practicality and some are very much “last resort”. We will analyse the implications in our final report but in the meantime would welcome further ideas on how to make up a budget deficit if one arises in future.

Other jurisdictions

8.1 This is an opportunity to develop arrangements suited to the particular circumstances of Northern Ireland. However, we will take account of the experience of other jurisdictions in the United Kingdom, Republic of Ireland and elsewhere through discussion and consideration of relevant publications. In this context, we will look with interest at two consultative green papers due to be published by the Ministry of Justice in London during November – on the proposals emanating from the fundamental review of legal aid in England and Wales announced by the Lord Chancellor in June and on the government’s response to the review of the costs of civil litigation conducted by Lord Justice Jackson. Also being published in a similar timescale by the Law Reform Commission in the Republic of Ireland is a report and draft legislation on alternative dispute resolution. We will place links to these publications on our website.

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