Third Standing Committee
on Delegated Legislation
Thursday 23 January 2003
[Mr. Bill Olner in the Chair]
Draft Access to Justice
(Northern Ireland) Order 2003
The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): I beg to move,
That the Committee has considered the draft Access to Justice (Northern Ireland) 2003.
It is a pleasure to see you in the Chair, Mr. Olner. This is the first time that I have served under your chairmanship and I am looking forward to doing so.
The order follows from the proposal for a draft order that was laid before the House in May 2003 and referred to the Northern Ireland Assembly. The proposal was also debated by the Northern Ireland Grand Committee.
The order is extremely important to the people of Northern Ireland because the administration and provision of publicly funded legal services are vital to ensure that individuals who cannot afford to pay for their own legal services can enforce their rights and have access to justice.
Lady Hermon (North Down): I apologise for interrupting the Minister so early on. Her point is well made; this is a vital issue to the people of Northern Ireland. However, as criminal justice is not a devolved issue, why are we dealing with an Order in Council and not a full Bill?
Ms Winterton: The decision was taken because there was full consideration of many of the issues in previous Bills that apply to England and Wales. We have tried to build on the Access to Justice Act 1999 to ensure that the proposal incorporates the Northern Ireland perspective. There have been wide-ranging discussions on many issues and a full debate in the Northern Ireland Grand Committee. I was pleased by the welcome that hon. Members of all parties, including the hon. Lady's, gave in the Grand Committee to the broad proposals for the reform of legal aid.
First, I will say something about the history of the order and mention some of the key features—
Mr. John Taylor (Solihull): Before the Minister does that, will she be kind enough to remind the Committee of the outcome of the deliberation in the Northern Ireland Assembly? It would be helpful to know, for example, whether there was more or less a consensus of support from the elected representatives of the people of Northern Ireland in the different political parties. If so, who are we to second-guess them?
Ms Winterton: During consideration of the draft order by the Northern Ireland Assembly there was a general welcome for the thrust of the proposal, certainly for the establishment of a Legal Services
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Commission. Several hon. Members wanted greater detail at that stage, but we wanted the Northern Ireland Legal Services Commission itself to put the final details together. It would not be correct to try to do everything in advance, especially as many of the decisions will—as I hope to demonstrate—depend on the Commission's conclusions. I know that that was raised during the course of the debate, but I hope that when I spoke in the Northern Ireland Grand Committee debate, I was able to explain why we wanted to ensure that the crossing of t's and dotting of i's would be carried out by the Commission, which would be able to look specifically at the needs of Northern Ireland when making its recommendations to the Lord Chancellor.
Lady Hermon: On the point about consultation with the Assembly, it is a rare thing for all the parties in Northern Ireland to reach consensus. In this case they did, and the report, published on 10 June 2002, says:
''The Committee would welcome further extensive consultation with all interested parties, before the laying of the order in Council.''
Can the Minister detail the extent of consultations with the Assembly since then?
Ms Winterton: There have been—
Sitting suspended for a Division in the House.
Ms Winterton: I was outlining the history of the order. Hon. Members will recall that when the Government came to office, we undertook a review of the legal aid scheme in England and Wales, which resulted in the Access to Justice Act 1999. In Northern Ireland, however, there has been no substantial reform of legal aid since 1981. We initiated a fundamental review in February 1998, which sought to take account of the distinctive features of the Northern Ireland legal services culture.
The review highlighted a number of important issues, which included the fact that there had been year-on-year increases in the overall cost of providing publicly funded legal services. The demand-led nature of the scheme was also highlighted, as was the absence of formal and independently verifiable procedures to demonstrate the level of services provided at public expense. Expenditure on legal aid in Northern Ireland rose from £12.9 million in 1990–91 to £41.53 million in 2001–02, which is a real-terms increase of 149 per cent. Crucially, however, there has been no corresponding increase in the number of people being helped.
The Government's primary focus is not on cutting overall expenditure on publicly funded legal services; we are committed to providing them to ensure that those citizens who cannot afford to litigate are able to protect their position and uphold their rights. It is important, however, to ensure that public funds are used to secure legal services for the most deserving cases and for actions that are of most importance to the individual citizen and to the community.
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Lady Hermon: Will the families of those 29, indeed 31, people who died in the Omagh bombing be given legal aid under the order? The Minister will know that they had to raise £2 million through various fund-raising efforts, including running marathons. Will she assure those families that they would now be entitled to legal aid?
Ms Winterton: It is, as the hon. Lady knows, not for the Lord Chancellor's Department to comment on individual applications for legal aid. She will also know that changes under the Justice (Northern Ireland) Act 2002 put a new scheme on the statute book with regard to funding in such cases. When there are exceptional and unusual circumstances, the applicant can make a case, which will be considered by the commission. That scheme will start in September 2003.
Mr. Taylor: I should like to remind the Minister that it is possible, in exceptional cases, for the Lord Chancellor himself to commit funds to litigants whose case would seem to be in the public interest. I served a previous Lord Chancellor, who granted funds out of reserve to the victims of the Marchioness tragedy so that they could be represented before the coroner's inquiry. There are exceptions and I venture to suggest that the hon. Member for North Down (Lady Hermon) has hit on a worthy case.
Ms Winterton: Yes, and I hope that my answer gave some indication of what will happen in the future.
Lembit Öpik (Montgomeryshire): What we have just discussed in relation to Omagh ties into the fact that the commission is to prepare a funding code that sets out the criteria against which any decision about funding individual cases should be made. Does the Minister agree that the code should not be totally rigid but should ensure that there is a degree of flexibility? That is important not least because if it is overly rigid, there is a danger that cases that are worthy, in terms of natural justice, will not be able to benefit from it.
Ms Winterton: I will come on to the code in more detail later, but I can assure the hon. Gentleman that there will be provision for exceptional grants to be made in exceptional circumstances. However, it is important to emphasise that they should be exceptional; otherwise the system goes completely the other way and, instead of being too rigid, becomes too flexible. It is important to acknowledge that there needs to be a balance between the two points.
Mr. Andrew Mackay (Bracknell): I endorse what the hon. Member for North Down and my hon. Friend the Member for Solihull (Mr. Taylor) said about the Omagh families and their need for some form of legal aid. Does the Minister accept that insult has been added to injury with the apparent decision to grant legal aid to two Real IRA terrorists, who can well afford to pay for their own defence? Will she promise to go away and consider the case, because it is causing grave offence not just in the Province but throughout the United Kingdom?
Ms Winterton: I have noted all the points made by hon. Members on that subject. A certain amount of funding was given with regard to the Omagh inquest,
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but I take on board the points that have been made and, if necessary, I will write to hon. Members.
The second point that came out of the review was the demand-led nature of the current system. The review established that at present there are important areas of advice and assistance, including social welfare issues, that do not always get the best out of publicly funded legal services. We wish to redirect funds towards those important services, which can make a significant difference to the circumstances of many individuals in Northern Ireland.
The third issue was the absence of any process to demonstrate that the taxpayer is paying for a high standard of service for those who need to use the system. Under the order, the solution to that is not the English model but a system of registration and codes of practice, a key distinction that will be made to accommodate the particular circumstances of Northern Ireland.
As I said earlier, the review of the publicly funded legal services in Northern Ireland did not take place in a vacuum, but drew upon the wealth of practical experience and knowledge in England and Wales, as a result of changes introduced under the Legal Aid Act 1988 and the Access to Justice Act 1999.
I stress again that we do not intend to import the English model into Northern Ireland. We expect that, while the Northern Ireland Legal Services Commission will have the same options available to it as its English counterpart, the way in which it will exercise those options will be different. The commission will undertake research into the extent and nature of the legal needs in Northern Ireland, and will identify the problems. The order also ensures that the commission will have sufficiently wide powers to be able to develop tailored solutions for Northern Ireland. Those are matters on which we will look to the commission to advise in due course.