APPENDIX 17
Memorandum submitted by the Social Democratic
and Labour Party
LEGAL AID
REFORM
1. The SDLP believes that government should
make every effort to guarantee equality of opportunity in terms
of access to justice, irrespective of means. Our position on legal
aid is derived principally from the right to a fair trial and
the right to equal protection of the law. Clearly these rights
are ineffective without the financial commitment to allow access
to the courts; tribunals and arbitration for those without adequate
resources. We would wish to see any future arrangements assessed
against, and fully consistent with, relevant international commitments
to the ECHR, UNDHR, ICCPR etc. The UN Basic Principles on the
Role of Lawyers is particularly specific about the responsibility
of government to provide "sufficient funding and resources
for legal services to the poor and, as necessary, to other disadvantaged
persons". The government should also rate the proposed Bill
of Rights for Northern Ireland, which may impact on the issue
of access to legal services.
2. Proposals for reform should be assessed
against international standards as set out above and should be
subject to an equality impact assessment under section 75 of the
Northern Ireland Act as well as a human rights impact assessment.
The SDLP express the wish that there has been formal consultation
with the Equality Commission on its proposals.
3. Administration: The SDLP would accept
that there is a need for reform of the current administration
of legal aid to guarantee openness and accessibility to the public
and remove any suggestion of conflict of interest between the
body administering public funds and the professionals receiving
remuneration through those funds.
4. Budget: Whereas the SDLP would accept
that, as with all government services, financial constraints influence
on the level of service that can be provided, nevertheless, it
is our view that functions relating to the protection of human
rights should be given particular priority. We do not, therefore
accept that there should be a cap on resources for legal aid and
are not convinced that the government would be satisfying its
legal obligations in respect of guaranteeing access to justice,
particularly in respect of criminal cases which should remain
"demand led".
5. If the government were proposing to reduce
the budget for legal aid, the SDLP would wish to see a thorough
assessment of recent spending and examination of types of cases
where the government believes resources are being spent unnecessarily.
The SDLP is not aware of money being "wasted in fruitless
litigation". It is not acceptable for government to act based
on "cash limits" without a reasonable assessment of
need.
6. The use of criteria may be a more acceptable
and more open approach to managing resources. However, the SDLP
was concerned to see that in the government consultation document
on legal aid, factors for consideration did not include any reference
to the protection of human rights or international obligations.
(Para 5.4). In any event, the SDLP would oppose any tightening
of the income band of those eligible for legal aid. Furthermore,
we would support the extension of legal aid to cover matters such
as employment legislation and inquests. In the latter regard the
SDLP notes the recent letter from the Lord Chancellor.
In any event, the SDLP would oppose any tightening
of the income band of those eligible for legal aid. Furthermore,
we would support the extension of legal aid to cover matters such
as employment legislation and inquests.
7. Government proposals to establish separate
funds for criminal, civil, family and non-family cases raise further
concerns as any one case could involve more than one element and
any or all could have serious human rights implications meriting
legal aid. Airey v Ireland (1979) 2 EHRR 305 has been cited
persuasively by the Human Rights Commission in this respect.
8. Priorities for selecting cases to be
supported should be set by the proposed independent Legal Services
Commission, not the Lord Chancellor, to avoid any conflict of
interest.
9. We support, in principle, the development
of non courts-based dispute resolution systems but consider that
it would be a breach of human rights to confine complainants to
any such system before their case is heard, particularly in circumstances
where it could be shown the decision was taken with a view to
cutting costs.
10. The Northern Ireland Human Rights Commission
is significantly under-funded at present and should not be considered
an "alternative funding mechanism" by government. The
criteria set out by the Northern Ireland Act for the purposes
of selecting cases, are matched by many more cases than the Commission
can support, given its budget. It therefore has been an ongoing
concern that if legal aid cannot be secured, such cases may not
be heard at all.
11. The SDLP shares concerns expressed by
many about contingency or "no win, no fee" arrangements,
in terms of a potential conflict of interest where lawyers could
come under pressure to accept a settlement rather than risk losing
the case. We would further stress that this mechanism should not
be considered an alternative to legal aid. Many important cases
go before the courts precisely because they are unpredictable,
and would not necessarily be appealing to lawyers operating such
a system. Moreover the "no win-no fee" approach has
prejudice actions, which require extensive pre-hearing expenditure.
12. The establishment of a Contingency Legal
Aid Fund could be of assistance but the SDLP would wish to see
strict guidelines to ensure that the percentage of their award
that complainants are expected to contribute, is low and affordable.
13. Despite public concern at high fees
charged by some lawyers, the establishment of standard fees could
obviously lead to a situation where successful, experienced lawyers
would generally find little appeal in legal aid work. Secondly,
fixed fees would be an incentive for any lawyer undertaking such
work, to conduct the case at minimum cost, possibly to the detriment
of the client. In our view, proposals to monitor quality cannot
detract from this basic problem.
14. The SDLP would oppose any move towards
requiring an acquitted defendant to pay for the costs of his/her
defence. This is incompatible with the presumption of innocence.
Furthermore, in the exceptional instance of a defendant who has
"brought suspicion on himself" or "misled the prosecution"
could be addressed by other means.
15. The SDLP would want to see the appointment
of at least one human rights expert to the Legal Services Commission
and that other appointments are publicly advertised and representative
of the community.
May 2001
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