Legal aid: the way ahead

agendaNi summarises the debate over the Legal Aid and Coroners’ Courts Bill which will set up a new agency responsible for this contentious area. Lawyers maintain that cutting legal aid can indirectly affect the quality of justice in the courts.

The Legal Aid and Coroners’ Courts Bill, currently before the Assembly, aims to bring the administration of the legal aid budget closer to the Department of Justice but also safeguard independent decision-making about payments in individual cases.

Legal aid was introduced in England and Wales in 1949, Scotland in 1950 and Northern Ireland in 1965. It allows people on low incomes to receive legal representation which would otherwise be unaffordable to them.

A claimant receives legal aid for free if their income is under £107 per week. If their income is higher (up to £134), they must pay a contribution to help cover the cost of their legal fees. The Treasury has been keen to reduce spending on legal aid across the UK and public resentment about lawyers’ fees has also added pressure for reform.

The Hillsborough Castle Agreement maintained legal aid funding at £84 million for the first three years of devolution, with the expectation that the Executive would cut the budget afterwards. The Department of Justice’s target is to reduce legal aid spending to £75 million by 2015 but, as the table on the next page indicates, spending stood at £91.8 million in 2012-2013.

David Ford has sought to cut spending by reducing the number of counsel assigned to cases and simplifying means tests. He initially tackled criminal legal aid before turning his attention to civil legal aid from November 2012 onwards.

“For many years,” Ford has said, “expenditure went unchecked but now with the devolution of justice and a locally elected Justice Minister, that situation will not be allowed to continue.”

As part of the reform programme, the Legal Aid and Coroners’ Courts Bill was introduced to the Assembly on 31 March this year. It passed its second reading without a vote on 8 April. The Bill will dissolve the Northern Ireland Legal Services Commission and transfer its responsibilities to a new Legal Services Agency in the Department of Justice.

The move follows on from the creation of the Legal Aid Agency in England and Wales, which replaced the Legal Services Commission in that jurisdiction in April 2013. The agency’s Chief Executive – known as the Director of Legal Aid Casework – will make decisions on civil legal aid independently of the Minister, his department or any political influence.

The department states that the legislation will not have any impact on access to justice or restrict eligibility for legal aid.

All applications for civil legal aid will continue to be taken on the merits of the case with applications for criminal legal aid still decided by the judiciary.

David Ford expects the Bill to become law later this year. Some secondary legislation will follow and the Minister will then set up the new agency. The start of the new financial year, next April, appears to be a likely date.

Decisions on the funding of civil legal services will be based on a uniform ‘prescribed merits test’ rather than the proposed statutory funding code. As an extra safeguard, the Minister will set up an appeals panel, made up of three members including a practising lawyer.

Criminal legal aid will still be funded under existing legislation – the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 – until new rules are introduced. These changes are expected to take place after the agency is established.

Law Society seeks robust appeals process

The Law Society gave evidence to the Justice Committee in May during its scrutiny of the Bill and called for stronger safeguards to protect the independence of decision-making by the Director of Legal Aid Casework.

“The society indicated to the committee that the appeals process must be robust, independent and transparent to ensure confidence in the system,” a spokesman said. He added that the Law Society “continues to engage” with the Department of Justice on the “implementation and implications” of legal aid policy.

Family law pressures

Northern Ireland’s barristers may follow their colleagues in England and Wales by taking strike action over legal aid cuts, the Chairman of the Bar Council has said. Mark Mulholland QC has said: “I know In England they view this very much as trying to signal their grave concerns over just how significant the cuts have been in terms of ensuring that the public are properly represented.”

The Bar has highlighted the growing number of children’s welfare cases which are adding to barristers’ workloads but are not reported, to protect the confidentiality of the families involved. The number of these cases rose from 3,997 in 2008 to around 7,700 last year.

Mulholland said that, after the cuts, it would be “difficult for the public, who can least afford the representation themselves, to be provided for in terms of experienced barristers to take their cases.” He thinks that the focus on a small number of high earners detracts from the hard work carried out by younger barristers, often with little pay.

Legal aid payments (£ million)

Source: Northern Ireland Legal Services Commission

Coroners

A shorter section of the Bill aims to improve the accountability of the coroners’ courts. The Lord Chief Justice will become the President of the Coroners’ Courts with a requirement to appoint a Presiding Coroner. The Lord Chief Justice may delegate any of his responsibilities for this part of the courts system to the Presiding Coroner except for the setting of rules and fees. Northern Ireland has three coroners – John Leckey, Suzanne Anderson and Jim Kitson – whose work is currently overseen by Mr Justice Weir.