Select Committee on Northern Ireland Affairs Appendices to the Minutes of Evidence


Memorandum submitted by the Social Democratic and Labour Party


  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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