SUBMISSION BY THE LAW SOCIETY OF NORTHERN IRELAND

July 2002

EXECUTIVE SUMMARY

2.1 In this section we summarise the main points made in the body of this submission. The LSNI would wish to recognise the valuable opportunity presented by this legislative initiative to reform and improve legal aid administration, including the planning, organisation and co-ordination of publicly-funded legal services within Northern Ireland. Throughout the submission the Society affirms the need for meaningful and proportionate reform based on a full understanding and recognition of the distinctive legal services and advice culture in this jurisdiction.

2.2 The LSNI affirms support and encouragement for any reform measure which will produce genuine improvements in access to justice and will address additional areas of unmet need, and which builds on the widely-recognised strengths of the present arrangements, including the developed infrastructure of community-based and accessible advice units represented by the network of solicitors offices throughout Northern Ireland.

2.3 By the same token the LSNI will continue to oppose a reform agenda driven primarily by unjustified costs considerations. Within the submission the Society points to the underfunding of these public services in Northern Ireland and suggests that this particular need in Northern should be addressed.

2.4 The submission begins with a Preliminary Observation (Section 3) wherein the LSNI sets out concerns about the decision of the Government to proceed by way of the Order in Council procedure. We explain why the use of delegated legislation for the purpose of conferring exceptional and extensive discretionary powers on a Government Minister is inappropriate, against the specific setting of this draft Order as primarily an enabling measure. The LSNI sets out the reasons why the use of a Bill procedure would be more appropriate for reform measures of this importance, highlights the inadequacy of the consultation process to date, submits that the Order in Council should be withdrawn pending further consideration of use of the Bill procedure, and submits also that if the Order in Council is to proceed it should not be used to carry contingent delegated powers.

2.5 In Section 4, the LSNI provides further detailed background information about the Northern Ireland context and legal services culture within which the suitability of the provisions of the draft Order fall to be assessed. In common with most other informed commentators within this jurisdiction, we draw attention to the extent to which the Government has failed to respect its previous commitment to deliver Northern Ireland solutions to Northern Ireland problems. We draw attention to the evidence (from independent sources) which confirm the points made by the LSNI about the different needs and requirements of this jurisdiction. We point to the dangers inherent in the importation to Northern Ireland of what is indisputably an English model of reform.

2.6 In Section 5 of the submission, the LSNI confirms its support for the creation of a new body to administer public funds allocated to legal and advice services. The LSNI confirms also a commitment to work constructively with the Government and with any new administrative body in securing the most effective transfer of functions from the LSNI as and when the necessary parliamentary approval is given.

2.7 We highlight also the extent to which we have serious reservations concerning the particular model proposed, pointing to the fact that the structure and responsibilities of the proposed Commission are virtually indistinguishable from those put in place in England and Wales to administer a totally different scale of budget.

2.8 The LSNI draws attention to the extent to which this will create a significant measure of expensive over-engineering as compared to the present system, and the extent to which under these proposals Northern Ireland will inevitably become subject to further derivative policies and practices.

2.9 We highlight the extent of costs and other controls over the proposed Legal Services Commission to be conferred on the Government which will circumscribe and limit the independence of the Commission, and which will prejudice or diminish the accountability of the new Commission to Parliament.

2.10 The LSNI puts forward an alternative proposal for a new administrative structure which is proportionate and suitable to the needs of Northern Ireland, will facilitate more cost-effective reform, and which is founded on the concept of partnership between all relevant stake holders in the common purpose of the effective, efficient and accountable delivery of publicly-funded legal and advice services in this jurisdiction.

2.11 In Section 6 the LSNI sets out detailed comments on those provisions of the draft Order which are designed to "cap" the civil legal services budget, will define the nature and extent of provision for criminal defence services, and propose to confer extensive actual or contingent powers on the Lord Chancellor in respect of future funding arrangements.

2.12 We draw attention to the absence of justification in Northern Ireland terms for many of these proposals, and set out the reasons why the Government should be prepared to recognise and take account of the principle of providing fair and reasonable remuneration. Otherwise we confirm readiness to engage in constructive discussion with the Government on all of these issues.

2.13 LSNI notes also the planned arrangements by which quality assurance considerations will be addressed by the proposed Commission. We record some reservations of principle, and our concerns to preserve the genuine independence of the solicitor in the relationship with his or her client while acknowledging the legitimate interests of the Commission as the funding body, and warn of the potential negative effects unless care is taken to avoid an unnecessary, over-prescriptive and bureaucratic approach to the setting of quality standards.

2.14 Otherwise the LSNI confirms its readiness to engage in constructive discussions with the new Commission about the mechanics of the proposed registration scheme and any associated Codes of Conduct.

2.15 Section 7, the LSNI sets out its position in respect of Part III of the draft Order. The LSNI, again in common with almost all informed opinion in Northern Ireland, confirms its most serious reservations about the importation to Northern Ireland of these provisions noting that Part III is a direct lift of the English provisions.

2.16 The LSNI endorses again, and includes as Appendix 2 to the submission, a constructive recommendation as to an alternative Contingency Legal Aid Fund model.

2.17 By reference to the considerable potential for these proposals to prejudice the interests of those who need ready access to genuinely independent legal advice the LSNI makes specific submissions that:

[a] given the widespread uncertainty about the operation of Part III provisions in England and Wales, and confirmed serious concern about the importation of that model to Northern Ireland, Part III should not be provided for by this draft Order. If the Government priority is to reform the administration of legal aid and to ensure that the new Legal Services Commission is in place by April 2003, there is no reason why Part III should not be withdrawn at this stage;

[b] in addition the Government should be prepared to explain why the Contingency Legal Aid Fund (CLAF) model for Northern Ireland is not acceptable. The LSNI maintains that the best viable potential option for Northern Ireland lies in the development of a not-for-profit independent CLAF on the model advised by the LSNI;

[c] in addition the Government should engage in a meaningful dialogue with the LSNI to explore the concerns we have articulated about the operation of the unregulated claims market and its particular negative effects on access to justice in Northern Ireland.

2.18 Finally, in Section 8 of the submission, we deal with a range of detailed matters arising from the terms of the Order. We address those specific questions on which views were invited by the Government as part of the consultation process, as summarised and listed in Part IV (pp 34 - 35) of the Explanatory Document issued with the draft Order.