REVIEW OF

ACCESS TO JUSTICE

Response of the Law Society of
Northern Ireland

96 Victoria Street

Belfast BT1 3GN

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REVIEW OF ACCESS TO JUSTICE

INDEX

Pages

FOREWORD 7

CHAPTER 1: INTRODUCTION 8-14

  • Introduction: 1.1-1.15
  • Human Rights Context: 1.16-1.21

CHAPTER 2: SOLICITORS – PRINCIPAL SERVICE PROVIDERS15-22

  • Solicitors’ Training: 2.2-2.6
  • Profile of the profession: 2.7-2.10
  • Professional Obligations: 2.11-2.27
  • Challenges facing legal aid users: 2.28
  • Challenges facing the legal profession: 2.29

CHAPTER 3: CRIMINAL LEGAL AID23-31

  • Criminal Legal Aid: 3.1-3.3
  • Remuneration levels: 3.4-3.12
  • Criminal Legal Aid Means Testing: 3.13-3.16
  • Recoverability of Defence Costs Orders: 3.17
  • Decision Making: 3.18
  • Representation at the Magistrates’ Court

by solicitor advocates: 3.19-3.20

  • PACE Work: 3.21-3.24
  • Early Guilty Pleas: 3.25-3.26
  • Diversionary Penalties: 3.27
  • Youth Conferencing: 3.28
  • Disputes between individuals or groups

at neighbourhood level: 3.29

CHAPTER 4: ADVICE, THE VOLUNTARY SECTOR AND PARTNERSHIP32-78

  • Jurisdictional limits of the County Court: 4.1-4.3
  • Telephone Advice: 4.4-4.9
  • Free initial advice: 4.10-4.11

CHAPTER 4 CONTINUED:

  • Alternative Dispute Resolution: 4.12-4.39
  • Family & Children: 4.40-4.45
  • Levels and extent of representation: 4.46-4.49
  • Time taken to complete care proceedings: 4.50-4.52
  • Role of court and involvement of lawyers

in care planning: 4.53-4.57

  • The role and remuneration of experts:4.58-4.65
  • Ensuring paramountcy of the welfare of the child

in private law cases: 4.66-4.69

  • Early use of mediation and other forms of ADR: 4.70-4.91
  • Court level at which proceedings are instituted and the

extent of representation and advice required for parties

in straightforward divorces: 4.92-4.112

  • Possibility of removing ‘costs protection’ 4.113-4.116
  • Fee Capping: 4.117-4.118
  • Research into remuneration: 4.119
  • Adversarial rather than inquisitorial procedures: 4.120-4.122
  • Money damages cases, negligence and

personal injury: 4.123-4.145

  • Clinical Negligence: 4.146-4.153
  • Administrative Law: Tribunals: 4.154-4.155
  • NI Ombudsman: 4.156-4.163
  • Internal Complaints: 4.164-4.170
  • Civil Legal Aid: Staged contributions: 4.171-4.174
  • Levels of representation: 4.175
  • Appeals to the panel: 4.176
  • Experts: 4.177
  • Exceptional Grants: 4.178-4.179

CHAPTER 5: SERVICE PROVIDERS, QUALITY & REGULATION 79-91

  • Mixed Model & Partnership: 5.1-5.6
  • Restricting a citizen’s right to a solicitor of their

own choosing: 5.7-5.11

  • Contracting: 5.12-5.17
  • Bureaucratic burden: 5.18-5.19
  • Direct employment of solicitors by LSC: 5.20-5.21
  • Quality Assurance: 5.22-5.30
  • Regulatory Framework: 5.31-5.43
  • Solicitor Advocacy: 5.44-5.47

CHAPTER 6: STRUCTURES FOR DELIVERING LEGAL AID &

DEVELOPING POLICY ON ACCESS TO JUSTICE92-93

  • Structures for delivering legal aid and

developing policy on Access to Justice: 6.1-6.3

  • Legal Aid Impact Assessments: 6.4-6.5
  • Civil Justice Reform Group: 6.6

CHAPTER 7: OPTIONS FOR MAKING FURTHER BUDGETARY SAVINGS94-106

  • General observations: 7.1-7.4
  • Limit Scope: 7.5-7.11
  • Reduced remuneration: 7.12-7.16
  • Financial eligibility & contributions: 7.17-7.22
  • Review aspects of substantive law that are

heavily dependent on legal process: 7.23-7.28

  • Reduce running costs at the NILSC: 7.29-7.33
  • Other sources of funding: 7.34-7.41
  • Attachment of future earnings or benefits: 7.42
  • Access to funds or interest: 7.43
  • Contributions from financial institutions: 7.44-7.45
  • Pro Bono: 7.46-7.51

APPENDIX 1 - GUIDANCE FOR PRACTICE FOR FAMILY LAWYERS

APPENDIX 2 – LSNI PROPOSAL FOR A CLAF

About the Law Society of Northern Ireland

The Law Society of Northern Ireland is the professional body which has the authority to discipline, educate and regulate practising solicitors in Northern Ireland.

Since its establishment in 1922 under Royal Charter, the Law Society of Northern Ireland has played a positive and contributory role in helping to shape the legal system within Northern Ireland.

By virtue of the Solicitors’ (Northern Ireland) Order 1976 as amended, the Law Society acts as the regulatory authority governing the education, accounts, discipline and professional conduct of solicitors in order to maintain the independence, ethical standards, professional competence and quality of services offered to the public. It carries out these functions to ensure that solicitors receive such support as to enable them to provide a quality service for their clients.

Membership of the Law Society of Northern Ireland

The Law Society of Northern Ireland has a membership of just over 2400 solicitors. The Law Society is composed of an elected Council of 30 members, all practising solicitors, who serve on a voluntary basis.

The Council is guided by the Presidential team which consists of the President, Senior Vice-President and Junior Vice-President.

Each member of the Presidential team is elected to office and serves a year in each of the three positions.

A list of current Council members and the Presidential team of the Law Society of Northern Ireland is available for download from

FOREWORD

In considering this Review Discussion Paper, the Society has ultimate regard for the fundamental principles of a fair and just society, underpinned by the rule of law. The rule of law demands an independent, impartial judiciary; the presumption of innocence; the right to a fair and public hearing without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communication between lawyer and client and equality of all before the law. It is the duty of the State to ensure protection of the rule of law. This is a duty which the Society, as the professional association of the solicitors’ profession, requires that the State meet.

A corollary of the rule of law is access to justice and you cannot have access to justice without an independent strong legal profession.

The solicitors’ profession is highly trained and skilled with expertise across the legal spectrum. In a jurisdiction where the legal framework is ever growing and becoming more complicated, it is essential that legal advisers are highly skilled and capable of communicating to their clients the practical workings of complex legal processes and principles. It is essential that the quality of legal service providers is guaranteed across the board and on an equal basis.

Government, in providing funding for legal services, is entitled to expect value for money. However, the interests of the client must be at all times paramount.Solicitors are at all times duty bound to act in the interests of their clients. They will continue to do so on implementation of any new arrangements arising from this Review.

This response, while the result of much discussion and consideration has been developed in a short time frame and there is much which the Society would have liked to have added if time had allowed. It is understood that there will be an opportunity to make further comments, prior to the publication of the final document. It is expected that a full public consultation will be conducted relating to any proposals emerging from the Review before any implementing legislation is introduced to the Assembly. We look forward to continued dialogue with the Review Team.
CHAPTER 1

INTRODUCTION

1.1 In any democratic society underpinned by the rule of law it is essential not only that legal rights and protections are enshrined in law but that these rights and protections are accessible. If legal rights are considered to be worth conferring on individuals, it is essential that the State allows and facilitates the pursuit of those rights.

1.2 The Law Society of Northern Ireland (the Society) recognises that in a changing, more complex, diverse, outward looking, dynamic and educated society, greater focus needs to be placed on value for money. Citizens have rightful expectations that, in formulating policy and targeting delivery of services, regard should be had to the need to achieve broader societal goals. Moreover, there should be a deeper and better structured dialogue with the public, whether as individual clients or businesses, about policy formulation, as well as service design and delivery. Citizens charged with a criminal offence which threatens their liberty should be entitled to proper legal representation. Likewise,citizens who have civil disputes regarding each other’s legal rights and obligations should have access to appropriate legal advice and representation. If such advice and representation is not provided to those in need, then the strong will triumph over the weak and the power of the State will go unchecked.

1.3To guarantee access to justice and provide legal advice and representation to those in legal need is a complicated policy matter and requires detailed consideration and analysis. The Discussion Paper raises a number of matters relating to how access to justice is guaranteed where a member of the public has a legal need. Whilst it does not make detailed proposals which have, as their object, the limiting of access to justice for certain sections of persons in need, the possible reduction in the range andscope of the present guarantee is raised and the Society will respond accordingly.

1.4The Discussion Paperraises wide ranging proposals for reform of the mechanisms which seek to guarantee access to justice. Those of sufficient means may of course be able to access justice by way of their own resources. It should be noted, however, that a victim of domestic violence may have sufficient means to cover the legal costs involved in obtaining a non-molestation order but may have insufficient means to cover the legal costs involved in applying for a divorce. The issue of how those of insufficient means afford the legal costs incurred when a person seeks to exercise their legal rights, or indeed to defend themselves against criminal accusations is under examination in this Paper.

1.5It is the Society’s view that where a person is unable to afford their own legal costs and needs legal aid, it is the responsibility of Government to guarantee access to justice for that individual. This principle has indeed become an established and respected one over the last 45 years in Northern Ireland and for over 60 years in England & Wales.[1] At the time of the creation of the Welfare State it was considered essential to the welfare of UK citizens that those of insufficient means were provided with legal aid. It is now widely accepted that any State, under the rule of law, must provide its citizens in need with access to justice.

1.6Whatever method is in place, it is essential that sufficient funding is provided to ensure a quality service for the citizen. It is through the provision of a quality service that a citizen’s right to a fair trial, as now enshrined in UK law by way of the Human Rights Act 1998, is protected. For instance, there is little point in providing a lawyer to represent a client in court charged with a criminal offence if Government has not also provided for the lawyer to test the evidence presented against the defendant by way of analysis and possibly through obtaining the views of experts, particularly if the State evidentially is relying on its own experts.

1.7Throughout this response the Society will have strong regard to the issues of quality, value for money and the need to ensure that clients who are reliant upon legal aid have their needs fully met through proper legal advice and representation.

1.8It is important to note that this Discussion Paper is not the commencement of the discussion around access to justice. Indeed the discussion around legal aid, the quality of services which it provides and the form of legal services which it should provide has been the subject of intense discussions for many years. [2]

1.9 Solicitors who undertake legal aid workoften feel frustrated by the seemingly continuous process of reviews of the legal aid scheme. Changes in structures and funding have led to prolonged periods of uncertainty for solicitors’ practices which have created difficulties when attempting to plan strategically. The following words are those of Stephen Mayson, made with respect to the system in England & Wales. However the Society considers they could equally have been made with respect to this jurisdiction:

“Persistent cycles of review and repeated changes of tack will undermine the very stability and investment for quality and value that the legally aided should be entitled to expect, as well as the value for money for the use of public funds that government and the taxpayer should also rightfully demand.”[3]

1.10The overall consequence of the various reform initiatives has been a lowering of the fees payable to service providers and a lack of certainty amongst service providers as to their income streams. The impact of reform proposals on solicitors has been exacerbated by inefficiencies within the Northern Ireland Legal Services Commission (NILSC), the body responsible for the administration of the legal aid fund, particularly in relation to the provision of payments by this body.The Society considers it important that the Review Team examines critically the recent and current reviews which are taking place in respect of legal aid.

1.11Members of the solicitors’ profession often feel they are criticised unduly for claiming fees which they are entitled to claim for work carried out on behalf of legally aided clients. It is important to note that the solicitors’ profession is required to produce detailed time sheets and reports of work carried out before they receive payment for it. Solicitors’ reports are thoroughly scrutinised by the staff of the NILSC who will regularly request further information and clarification before releasing payments. Fees set by Government for legally aided work are rarely subject to any inflationary rise and many years can pass before fees are reviewed. The most extreme example of this is the hourly rate for Green Form work. Effectively, the Legal Aid Fund pays for legal services at well below commercial rates. The infrastructure of many solicitors’ practices is largely funded by private client work, with legally aided cases – which are often labour intensive – providing a modest part of their turnover.

1.12In responding to this Discussion Paper, the Society will consistently highlight the importance of Government’s responsibility for guaranteeing access to justice for those in legal need. The Society will also refer to those members of the public, who are reliant upon the Government to guarantee them access to justice and to the implications if Government failed in its obligations to these people. Those reliant on legal aid are often the most disadvantaged and vulnerable persons in our society. Whilst those relying on legal aid are often portrayed in an unfavourable light, the reality is that without access to legal services their rights could quickly become meaningless. Legal aid is for the benefit of the public , not of lawyers.

1.13 As with all matters relating to both the criminal and civil justice, the interests of victims must be given significant consideration. Whilst it often goes unacknowledged, the Legal Aid Fund benefits victims in many ways. In this response, the Society will highlight how the proposals contained within the Discussion Paper will impact on victims, whether they are victims of the negligent acts of another or victims of family breakdown. Government has a responsibility to guarantee access to justice for victims just as they do for those charged with criminal offences. Victims often require the assistance of a legal adviser to ensure the person or body that has victimised them is brought to justice. Furthermore, they will require the assistance of a legal adviser to ensure that they are properly compensated for the loss that they have suffered.

1.14 The Criminal Injuries Compensation Scheme exists to compensate victims for injuries suffered as a result of criminal acts. Historically those applying for compensation were permitted to reclaim legal costs incurred in making their claim. However legal costs are no longer recoverable and victims are encouraged to discuss their claim with Victim Support. Compensation claims are assessed by way of a tariff scheme. Under current arrangements victims who are unable to afford legal assistance must prepare their application and arrange for a medical report without the assistance of a solicitor. The absence of legal assistance is most critical where the victim receives an offer according to the tariff scheme and they then must assess the value of the offer against the evidence which they have provided. Where members of the public decide not to accept an offer and appeal it, they are still not entitled to reclaim legal costs, with the result that they may have to go before the independent tribunal unrepresented. How could a victim, who may still be suffering from the effects of their injuries, be expected to prepare for and present their case at a tribunal without the assistance of a solicitor? Whilst some provision has been made for Victim Support to provide assistance less than 40% of victims seek their assistance.

1.15 The Society considers that criminal injuries compensation is one of the many areas where the Government is under an obligation to guarantee access to justice for victims. Where victims have insufficient means to obtain the advice and assistance necessary for them to access justice, Government must provide it. Whilst there are many other specific areas the Society considers that the interests of victims should permeate all areas of justice and due regard must be had for them. The Review Team must be conscious of victims’ interests as they take forward the Review.

Human Rights Context

1.16 The Society approaches the proposals in the Discussion Paper with reference to the fundamental principle that individuals are entitled to receive a fair trial. The right to a fair trial is guaranteed by Article 6 of the European Convention of Human Rights, which has been incorporated into UK law by virtue of the Human Rights Act 1998. The right to a fair trial is most often referred to with respect to persons charged with criminal offences. However the right equally applies where a citizen is seeking to assert his or her civil rights. Whilst the wording of the Article does not expressly recognise it, it is essential that a person seeking a determination of their relation to their civil rights or obligations has access to a lawyer. Where a person has insufficient means to afford a lawyer, it is incumbent on Government to provide him or her with one. The Article does expressly recognise the right of a person charged with a criminal offence to legal assistance. This is reflected in sub paragraph 3 of Article 6, which reads:

”3. Everyone charged with a criminal offence has the following minimum rights

(a) to be informed promptly, in a language which he or she understands and in detail, of the nature and cause of the accusation against him;