Dear Member,
Below is the BSA draft response to the DOJ consultation paper relating to Scope of Civil Legal Aid.
The Association would welcome from members any reasoned comments, additions, amendments or substitutions that it is felt are required in respect of this response.
Please note any comments should be sent to the BSA administrator using the email above no later than close of business on Wednesday 28 January next. The response itself must be filed with the DOJ by Friday 30 January next.
The consultation paper itself can be accessed through the DOJ website.
Belfast Solicitors’ Association
The Belfast Solicitors Association
The Belfast Solicitors Association (‘BSA’) is an independent association of
solicitors who practise in the greater Belfast area.
The membership of the BSA is currently 1100 individual members and 17 corporate members representing 160 firms of Belfast solicitors.
The BSA is managed by a committee of 20 solicitors who all practise in Belfast and who are elected annually by the members. There are 8 sub-committees to take forward the activities of the BSA: Conveyancing, CPD, Criminal, Matrimonial, Litigation, PR, Social and Finance.
The BSA was founded over sixty five years ago and its constitution provides that it:-
“ . . . is established to promote the welfare and interests of the legal profession in general and the solicitor’s profession in the greater Belfast area . . . in particular, and to take such steps as are available to the Association to ensure the provision of ethical and efficient legal services to the community in Belfast.”
In furtherance of its objects the BSA organises on a yearly basis an extensive programme of lectures, seminars and other training events for members. This has been carried out since the formation of the BSA and so long pre-dates the compulsory Continuing Professional Development requirements recently put in place by the Law Society of Northern Ireland.
The BSA also maintains contact with and makes suggestions and representations to all appropriate bodies including other similar associations and the Law Society of Northern Ireland, with a view to the better regulation of the legal profession and the better provision of legal services.
The BSA also may make recommendations and issue guidelines to its members in relation to all matters of professional conduct and etiquette in the provisions of solicitors’ services.
At the outset the Belfast Solicitors Association wish to make a number of representations concerning the general tenor and philosophy which underlines the Consultation Documentation on the scope of Civil Legal Aid.
The Consultation Paper is correct when it advises that the review is predicated upon the response to the initial Access to Justice Review commissioned in September 2010. It is noteworthy that in paragraph 1.2 of the document, reference is made to Project 34 and the Statutory Registration Scheme. It is also noteworthy that the Registration Scheme and the principles of transparency and accountability which underpin same are not referred to in the remainder of the consultation document.
Again it is important to observe, that the principle of Access to Justice particularly for those who are the poorest and most vulnerable in Society, must continue to be a fundamental tenet of any proper civil justice system. It is submitted that the approach set out in the Consultation Paper regarding restrictions in the scope of Civil Legal Aid does not necessarily meet that objective.
ALTERNATIVE SOURCES OF FUNDING
A preset encompassed within the Review, is that there is available alternative sources of funding to replace in particular the Legal Advice and Assistance Scheme. This is set out in in Section 7 of the Consultation Document.
In paragraph 7.4 it is asserted, “the Department therefore proposes that certain areas, particularly where it can be demonstrated that they are funded by an alternative source, should be excluded from all forms of advice and assistance for the purposes of legal aid”. Emphasis thereafter is placed upon. Inter alia , the advice and assistance provided by the Voluntary Community Sector, Belfast City Council and Citizens Advice Bureau and the Legal Support Project . However, absent completely from Section 7.0 are any proposals to ensure that this alternative funding, which still represents utilizing public funds for Legal Services, will meet fully the accountability or regulatory oversight features and review processes which were detailed in expansive form by the Department concerning the Statutory Registration Scheme for all solicitors providing publically funded legal services. What infrastructure will be put in place by the Department to oversee the use of public funds by providers other than Solicitors? Have the potential costs of such an overview process been incorporated into the cost benefit analysis that a Consultation Paper of this kind would merit?
LEGAL ADVICE AND ASSISTANCE SCHEME
Section 8 deals with the reform of the Legal Advice and Assistance Scheme. Of particular note, it makes a bold assertion that the Voluntary Sector particularly in the fields of welfare, debt and housing utilise non legally qualified staff who are as effective as lawyers or more so, in providing advices in their specialist areas. Whilst fully accepting, that there are individuals who practice in Citizen Advice Bureau and other Advice Centre who do provide very clear and coherent advice to those who seek their services, the assertion that lawyers are in fact less able in the areas of welfare, housing and debt to provide appropriate and adequate advice that non lawyers at least merits some investigation rather than the simple statement which appears in paragraph 8.1. as an axiomatic fact.
Both the original and the subsequent Access to Justice Reviews recognise “early advice and assistance can assist with the resolution of issues before the escalating disputes the result in loss to the individual or go to Court”. See paragraph 7.2 Access to Justice Review (2).
Of significance at this juncture, the consultation paper fails to recognise the triage model that many solicitors offices encompass. For example where there is a break down in a martial or other relationship involving children, issues concerning potential maintenance, contact or domestic violence may be to the fore but equally the breakdown of the relationship may also cause matters to arise concerning entitlement to Social Security Benefits or potential debt or housing issues. The solicitors office where a number of solicitors dealing in specific areas can be a catalyst to providing appropriate and clear advice at the outset in all of these areas and therefore minimising the trauma to the individual client. Under the Consultation Document, paragraph 8.21, this model will be undermined because if ancillary issues relating to the relationship breakdown arise , for example benefits or housing issues, these will be removed from the scope of Green Form and in fact the solicitor will be required to direct the client to alternative funding in the form of Citizens Advice or Housing Rights Services.
THE MERITS TEST
Matters then turn to Section 9 reform to the merits test. Paragraph 9.7 sets out a proposed new merits test which seem somewhat nebulous in concept and in practice raises operative issues. For example. if the advice is furnished by the solicitor on the basis that he or she is satisfied that the merits criteria is met, how is the claim then subsequently assessed if in fact a view is formed by LSC or its successor that the merits test was not satisfied ? Equally, there appears to be an absence of recognition, that the Legal Advice and Assistance Scheme often provides investigatory help whereupon that investigation may lead to advice being furnished to the client that in fact there is little prospect of success in the case or that the matter is resolved in an expeditious matter which again fulfils the criteria recognised in the Green Form Scheme by the Access to Justice Review.
Paragraphs 9.12 and 9.13 set out options for reform relating to ABWOR and seem to incorporate a complex arbitrary and administratively cumbersome scheme to determining prospects of success under ABWOR or a full Civil Aid Certificate and have clear echoes of the Funding Code Scheme which was the subject of consultation as far back as 2006.
With regards to Paragraph 10.11 the suggestion that Legal Aid for actions relating to Probate and Land Law should be removed from the scope may well be valid recognising that the Civil Aid Scheme due to budgetary constraints cannot seek to encompass all areas of law. However, the removal of assistance in the areas of Welfare and Employment Law does not appear to be warranted in light of the fact that matters which involve both these spheres can be complex and require specialist legal input. Moreover, there seems to be a contradiction appearing in Annex E of the Document. For example with regards to employment law, the proposal is to remove from scope all advice and assistance in the employment field, notwithstanding the fact as stated, that issues of unfair and wrongful dismissal, and redundancy and breach of contract are areas which do require an individual to receive clear and proper advice at the outset. However, discrimination proceedings, even if they are employment related, would be retained within scope. So, if an individual is making a complaint of unfair dismissal and sexual or religious discrimination, it would appear that advice which is furnished concerning the unfair dismissal would be outside scope but advice relating to the discrimination element would be within scope. In practical terms this is impossible to perceive as the unfair dismissal and the discrimination case are so closely entwined that they cannot be separated in this fashion.
Another area of concern are cases falling under the Protection of Harassment (Northern Ireland ) Order 1997. Theses are to remain within scope with the caveat that in neighbour disputes all other avenues must be exhausted first. In practice, how will this work? Violence or the immediate threat of violence is made by one neighbour against the other . What other remedies is the innocent neighbour to utilise in such a serious situation before he can avail of legal advice
OVERVIEW
Whilst the Belfast Solicitors Association must concede, that budgetary restraints require the re appraisal of Civil Legal Aid services, it is submitted that the Consultation Paper on the scope of legal aid is deficient, in that, it fails to recognise and credit the network of solicitors offices which exist throughout Northern Ireland and the triage type of legal advice which can be provided by those solicitors. Moreover, quite proper, requirements which will be operated under the Statutory Registration Scheme regarding the scrutiny and accountability of solicitors providing Legal Aid Certificate services, do not appear to be replicated in the proposed reduction of the scope of legal and the transferring of public funds to other non lawyer bodies where that regulatory frame work is absent. Equally, there must be a legitimate concern, that whilst solicitors are wholly independent in the service they provide, the alternative funders will be reliant upon appropriate funds being directed to them by government departments or agencies who they will be challenging regularly in the pursuit of remedies for individuals.
PRIVATE LAW CHILDREN ORDER CASES
Specifically in relation to the scope of legal aid in Private Family Law cases, we all aspire to a society were children’s views are respected and their rights are realised. The proposed removal of various aspects of private legal aid funding from scope, gives us grave concerns.
This jurisdiction acts under an adversarial system. The parties in any case are required to present evidence to the Court. It is not the function of the Court to conduct enquiries necessary to inform the decision making process.
Proper access to legal aid advice, assistance and representation, are required and key to ensuring children’s rights are protected. In addition, proper access for justice of parents is also essential as many disputes impacting on children’s lives involve their parents.
The English National Audit Office has produced a report on the impact of similar legal aid reforms, which have already been introduced in England. This report states “that in implementing the reforms, the Ministry did not think about the impact of the changes on the wider system early enough”. The report states that the Court system is clogged up with litigants in person which use more Court resources. The research found that where litigants in person are involved cases are less likely to settle outside Court, there is a greater likelihood of Court Orders and interventions in cases which leads to additional work for Judges and Court staff which make the Court listing process less efficient. As a result which cases will probably take longer and may be delayed. Practitioners in the Family Court are aware of the “no delay principle” enshrined in the Children’s Order. There would be concerns about the impact of removing private law scope of legal aid for this reason.
It is noted that in England and Wales, legal aid is still available for mediation to resolve Family Law disputes despite private Family Law cases being taken out of the scope for legal aid.
It would be submitted that it in the majority of Family Law cases that mediation may be appropriate. Mediation requires highly functioning individuals for the process to be successful. Also, the costs of mediation would far exceed the costs of private law Court proceedings with clients obtaining appropriate legal advice and representation
There is an obligation on the Department of Justice to carry out a child’s right impact assessment to fulfill this obligation under the UN Convention on the rights of the child.
It is not apparent that this has been done as part of the consultation. The Belfast Solicitors Association would seek clarification of this, and if this has not been done, would call on the Department to do so
The Office of the Children’s Commission for England and Wales produced a very comprehensive report in September 2014 entitled “Legal Aid changes since April 2013, Child Rights Impact Assessment”. We comment this report to the Department for their consideration. This research-based report clearly highlighted the difficulties with the removal from the scope of many categories of legal aid and concluded that a wide range of rights under the UN Convention were being impacted on. The Commissioner stated “urgent review and reform is needed in order to ensure that the legal aid system can adequately protect the rights of the children and young people, and that the Governments obligations under the UNCRC are met”.
Response to Consultation Questions appearing at paragraph 14.2 of the Consultation Paper.
Question 1
Do you agree with the strategic considerations that the Department took into account when drawing up these policy options? Do you think that these and other considerations the Department should have taken into account?
Reference is made to the body of the response enclosed herewith but particularly the Department is directed again to the triage facility that the network of solicitors firms within Northern Ireland operate .It is quite clear that this is a consideration in the strategic overview that was not taken into account by the Department in its Consultation Paper.
Question 2 – Do you agree that there are already multiple alternative funders for certain types of advice and that limited legal aid funding should be withdrawn from those and directed where it is needed the most and can make most difference?
It is recognised by all that budgetary restrictions do require an overview of all public funded legal services and that it is important that those services are directed to the areas of greatest need and to the most vulnerable members in society. However the fundamental principle concerning Access to Justice must be maintained. It is submitted that there are deficiencies in the proposals set out in the consultation that are adequately expanded upon in the body of the Association’s response.
Question 3 – Do you agree with the options to amend the merits test? Do you agree the prospect of success should be explicitly addressed in any application for legal aid?
Reference is again made to the body of the response enclosed herewith and the concerns raised about the administrative complexity and potentially arbitrary nature of the proposed merits test.
Question 4 – Do you agree that the civil case types outlined in paragraph 10.6 should be a lesser priority for funding? Or these or other types which you would consider to be more appropriate for removal?
The Association is not in disagreement with the suggestion that the areas set out in paragraph 10.6 are and should be of lesser priority.
Question 5 – Do you agree with the rational for removing the cases in civil legal aid from scope? Do you think other considerations should have been taken into account?
Again the Association refers to the body of the response herewith but in particular the matters concerning the proposed removal of private family cases form the scope of legal aid and the absence of a cost benefit analysis by the Department within the Consultation Paper to increased time and expense that litigants in person will create for the family justice system.
Question 6 – Do you think there are other options to produce expenditure in private law family proceedings?
The Association respectfully believe that this is a matter for the Department to consider within the context of its budget. However, it remains our clear view, that removing private family cases from the scope of legal aid will not make the savings suggested as the increase in litigants in person, the further delay within the Court system and the costs which will be incurred as a result of that delay will outweigh any immediate fiscal gain which is obtained.
Question 7 – Do you agree with the options re the scope of private law family proceedings?
See response at questions 5 and 6 above.
Question 8 – Do you think that any other exceptions apart from domestic violence or harm to the child should be made.
See response at questions 5 and 6 above.
Question 9 – Are there other factors or issues which would be considered by the Department as relevant when looking at scope?
Again the Association refers to the detailed response enclosed herewith and again ask the Department to give appropriate cognizance to the available network of solicitors which operates throughout all of in Northern Ireland with a triage model that provides an immediate access to the client for early legal advice and assistance which ultimately can lead to a resolution of the issue at hand, reduce personal trauma for the client and act in real as a saving in costs.