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The Legal Aid Impact Test

The legal aid impact test -   assessing the implications of government proposals on courts and legal aid

If you are working on government policy development within the Northern Ireland Courts and Tribunals Service or other government departments, you must consider whether there will be either a potential impact on the workload of the courts or a legal aid cost. This section includes guidance to help you determine this; provides a background to the legal aid scheme in Northern Ireland; and includes the contact details of our legal aid team who you should contact to obtain further guidance and help with costing the impact.

This impact test has been developed in conjunction with DETI (NI) and Cabinet Office, and sits alongside existing guidance on Regulatory Impact Assessments


When you need to contact us

Whenever consideration is being given to the introduction of new criminal sanctions or civil penalties, we must be consulted at an early stage in the development of the proposal. It will always be necessary to discuss and agree the consequences, including the resource implications, of the new proposal for the workload of the courts and legal aid. Central to this consideration will be the completion of a legal aid impact test. This is not a difficult process but it is very important that it is carried out to ensure that there are no subsequent problems with securing policy approval for your proposal. The results of the test and any impact identified should be reflected in the enforcement and sanctions section of the regulatory impact assessment (RIA). www.cabinetoffice.gov.uk/regulation

Legal Aid Impact Test – stage one preliminary

Legal aid is not just about funding cases in court, legal advice and assistance can be available to inform people of their rights and obligations, and entitlement, where a question of Northern Ireland Law is concerned. For example, to explain how new legislation impacts on them individually or to advise on the entitlement and amount of state benefits payable.

You should have the following information to hand when you make contact:

  • a broad outline of the proposal;
  • what is it intended to achieve, in what timescale;
  • what commitments have been given, and to whom; and
  • how the proposal changes what happens now

We will provide you with an initial assessment of whether there are any implications for legal aid and the work of the courts arising from your proposal. If none are identified this can be stated in the “Enforcement and Sanctions” section of the RIA.

However, if an impact is identified you may need to proceed to stage two.

Legal Aid Impact Test – stage two costing impact

Once you have established that there is an impact on legal aid and the work of the courts you will need to obtain an estimate of costs.

You will need to provide the same information as at stage one plus an estimate of the number of people likely to be affected by your proposal. We will provide you with text, which will need to be inserted in the RIA under “Enforcement and Sanctions” after agreement has been reached on where responsibility for any new resulting costs will lie.

Legal Aid Scheme in Northern Ireland

Legal Aid in Northern Ireland currently costs more than £63.5m per annum.

At present legal aid falls mainly under two distinct headings:

  • Civil Legal Aid, which provides help and assistance in civil  and family matters; and
  • Criminal Legal Aid, which provides help and assistance to those accused of a criminal offence.

In fact, legal aid, subject to means and merits test, is available for many aspects of the law which are triable in a court in Northern Ireland. Therefore many new proposals brought forward by central government departments will directly impact on legal aid expenditure (e.g. changing the criminal or civil law or improving or affecting in any way the rights of individuals) without that impact being readily or immediately apparent.

It is therefore essential that an assessment is made, as early as possible, on how policy change might impact on legal aid. At the same time we will also, with the assistance of colleagues, make an assessment of any possible impacts on the work of the courts.

Civil Legal Aid

Costing around £38.25m a year, Civil Legal Aid provides help across a range of areas–

  • adoption/affiliation
  • bail
  • bankruptcy
  • children and family matters
  • divorce/maintenance/other matrimonial
  • injunctions
  • judicial reviews negligence – general/medical/tripping
  • personal injury cases

Within Civil Legal Aid there are three main stages – legal advice and assistance, assistance by way of representation and legal aid. Legal advice and assistance provides initial advice on any aspect of Northern Ireland law. Qualification is subject to the individual’s financial circumstances (the ‘means test’).

Legal aid, including ABWOR, provides for comprehensive help including, where required, representation at court. To qualify two tests must be met. The first involves financial eligibility, and depending on the applicant’s personal circumstance, he/she may receive free help or may have to pay a contribution towards the cost of the case.

The second test involves the merits of the case, i.e. a person shall not be given legal aid in connection with any proceedings unless he shows that he has reasonable grounds for taking, defending or being a party thereto.

The Northern Ireland Legal Services Commission (the Commission) is currently undertaking a substantial reform programme which will result in the introduction of Civil Legal Services under the Access to Justice Order (Northern Ireland) 2003.

Criminal Legal Aid

Criminal Legal Aid costs approximately £25.40m per annum, representing approximately 40% of the total legal aid budget.  There are three levels of service –

  • advice and assistance on criminal matters general, under the same provisions for civil cases;
  • free advice and assistance for anyone being interviewed at a police station in connection with a suspected offence (PACE advice); and
  • free legal aid.

To qualify, the court must satisfy itself on two matters:

  1. that the means of the accused are insufficient to enable him to obtain legal aid;
  2. it is desirable in the interests of justice that the accused, or a person brought before it to be dealt with, should have free legal.

In satisfying itself, the court may consider, among other matters:

  • where the offence is serious enough that on conviction a custodial sentence is possible;
  • there is a possibility of loss of livelihood or damage to reputation;
  • there is a substantial question of law to be argued; and
  • the accused is unable to understand the proceedings (e.g. does not speak English or is mentally ill).

Currently there is free legal aid in all criminal proceedings in Northern Ireland.

Approximately 35% of the total individuals who appeared in the magistrates’ court and 98% of the total individuals who appeared in the Crown Court were legally aided.

 

Statement of Means of an applicant under Part III of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981

 

If you wish to obtain legal aid in a criminal case you must first complete this form which will be used to determine whether you are entitled to legal aid. The form can be accessed here.