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House of Commons
Session 2005 - 06
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Standing Committee Debates

First Standing Committee
on Delegated Legislation

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First Standing Committee
on Delegated Legislation

The Committee consisted of the following Members:


Ann Winterton

†Austin, Mr. Ian (Dudley, North) (Lab)
†Bellingham, Mr. Henry (North-West Norfolk) (Con)
†Brennan, Kevin (Cardiff, West) (Lab)
†Brown, Mr. Nicholas (Newcastle upon Tyne, East and Wallsend) (Lab)
†Bryant, Chris (Rhondda) (Lab)
Dodds, Mr. Nigel (Belfast, North) (DUP)
†Keeble, Ms Sally (Northampton, North) (Lab)
†Lidington, Mr. David (Aylesbury) (Con)
†Lucas, Ian (Wrexham) (Lab)
†MacShane, Mr. Denis (Rotherham) (Lab)
†Mulholland, Greg (Leeds, North-West) (LD)
†Naysmith, Dr. Doug (Bristol, North-West) (Lab/Co-op)
†Prentice, Bridget (Parliamentary Under-Secretary of State for Constitutional Affairs)
†Reed, Mr. Jamie (Copeland) (Lab)
Tyrie, Mr. Andrew (Chichester) (Con)
Wallace, Mr. Ben (Lancaster and Wyre) (Con)
†Wright, Jeremy (Rugby and Kenilworth) (Con)
Frank Cranmer, Committee Clerk
† attended the Committee

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Tuesday 29 November 2005

[Ann Winterton in the Chair]

Draft Legal Aid (Northern Ireland) Order 2005

10.30 am

The Parliamentary Under-Secretary of State for Constitutional Affairs (Bridget Prentice): I beg to move,

    That the Committee has considered the draft Legal Aid (Northern Ireland) Order 2005.

It is a delight to serve under your chairmanship, Lady Winterton. I hope that the Committee will support the order, which amends existing legislation to provide an express power to grant legal aid in Northern Ireland in exceptional circumstances.

It may help the Committee if I briefly outline the background. An extensive programme of legal aid reform is already being undertaken in Northern Ireland. Under the Access to Justice (Northern Ireland) Order 2003, the Northern Ireland Legal Services Commission was established to administer legal aid there. The commission is working towards the implementation of civil legal services, as provided for by that order. However, until then the commission provides legal aid under the terms of a 1981 order.

That 1981 order is both restrictive and inflexible. It contains no powers to grant legal aid in exceptional circumstances. Such a power is required to ensure that exceptional cases can receive funding, even if they are outside the scope of the legal aid scheme. The Committee will be aware that an exceptional grant power has been available in England and Wales since 1988, and that it has been a well established aspect of legal aid since the enactment of the Access to Justice Act 1999.

In November 2003, the exceptional grant power in the Access to Justice (Northern Ireland) Order 2003 was commenced in transitional form to address that lacuna. That power has worked well and has provided important assistance in numerous cases, particularly in relation to inquests. However, earlier this year it was challenged by way of judicial review. The judge concluded that the transitional grant power was ultra vires, as it went beyond the scheme approved by Parliament in the 2003 order. The judicial review was brought by one of the defendants to the civil action taken by the families of the Omagh bomb victims. He also successfully challenged the funding provided to those families under the exceptional grant power.

Last night, I watched a video of the Channel 4 film of the Omagh bombing, which was made with the co-operation of the Omagh families. If members of the Committee had seen that film, they would understand why we believe it is so important to rectify this situation. It was a harrowing and deeply moving film,
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and I am sure that the Committee will support me when I say that it is important to act as quickly as possible in that regard.

The draft order rectifies the shortcomings identified by the court and provides a clear legislative basis for the provision of legal aid in exceptional cases that could not otherwise attract funding. It also provides a mechanism to allow funding for wholly exceptional cases that, while falling within the legal aid scheme, fail to secure funding.

The Committee will note that the order essentially replicates the exceptional grant provision set out in the repealed section 76 of the Justice (Northern Ireland) Act 2002. The judge noted that that provision was a potential model for the transitional power. That model has now been subject to an important addition.

The order empowers the Lord Chancellor to direct the Northern Ireland Legal Services Commission to fund specified general categories of cases that fall outside the scope of the ordinary legal aid scheme. The Committee will have noted from paragraph 12 of the Lord Chancellor’s draft guidance, which I have made available to the Committee, that that will include funding for further representation at certain inquests. The order also empowers the Lord Chancellor, in response to a request from the commission, to authorise funding generically or in respect of individual cases that fall outside the scope of the ordinary legal aid scheme.

The two powers that I have outlined are fully consistent with the powers available to the Lord Chancellor in England and Wales, which will be available substantively in Northern Ireland when the 2003 order is fully commenced. The new power in the order—the one that goes beyond the model in the 2002 Act—enables the Lord Chancellor, in response to a request by the commission, to authorise funding generically or in respect of individual cases that are within the scope of the ordinary legal aid scheme. It may help the Committee if I say a few words about that provision, as it is the only substantive one that the House has not considered previously.

The power is intended to compensate for the inflexibility of the powers available under the governing 1981 order. It is a transitional provision, necessary only until the full range of powers becomes available to the commission and to the Lord Chancellor in Northern Ireland—as in England and Wales—under the 2003 order. The draft guidance outlines practical examples of systemic inflexibilities in the 1981 order. For example, that order prohibits the development of appropriate and responsive measures to ensure that funding can be made available for cross-border litigation and control orders. In England and Wales, such cases are dealt with within the ordinary legal aid scheme. If the 1981 order prevents appropriate arrangements from being developed, it is only right that there should be an exceptional grant power to address those systemic difficulties.

That leaves the question of individual, wholly exceptional cases that are technically within the scope of ordinary legal aid but that cannot secure funding. The order will allow the commission to request
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funding if it is persuaded that the case in question deserves funding and that there are compelling reasons why simply applying the rigid tests set out in the 1981 order is inappropriate. Of course, given that the tests are there to protect the legal aid fund and to ensure consistency of treatment, I would not expect the commission to request funding for an individual case in other than the most exceptional circumstances.

The Committee may wonder whether the power would enable further funding to be made available for the Omagh civil action. In theory that would be possible, but as the Committee will appreciate from the text of the order and from the draft guidance, funding for the Omagh civil action is a matter in the first instance for the commission to determine; it becomes relevant only if the commission requests authority to fund the action. Any Minister who received such a request would have to consider it in the same way as any other request—on the merits of the case and against the general principles set out in draft guidance.

I apologise to you, Lady Winterton, and to the Committee for taking so long to cover this short order, but as its background is somewhat unusual I thought it appropriate to help the Committee to deal with these matters comprehensively.

10.38 am

Mr. David Lidington (Aylesbury) (Con): I join the Minister in welcoming you to the Chair, Lady Winterton. I hope that I will please all members of the Committee in announcing my intention to be brief. That said, I have three points to put to the Minister, the first of which is on Omagh.

I share the Minister’s view of that appalling event in Omagh. Last year I spent more than an hour sitting with members of the bomb victims’ families and listening to their stories. Those people, who are from different walks of life and different political and denominational backgrounds, were united in a still raw sense of grief at the way in which their families had been torn apart, and by a sense of justice so far denied. When I met them, no one had even been charged, let alone been brought before a court to stand trial for that shocking crime.

Since that meeting, a criminal case has commenced, so I shall be careful in what I say about those events. As I am less constrained than the Minister, I can however express to her the hope of many people in Northern Ireland on both sides of the political divide that the passage of the order will enable the commission or the Lord Chancellor to recommence funding for the civil action in fairly quick time. Healing can take place in Northern Ireland only when the truth is known—when people come forward and accept responsibility for the terrible things that they did in the past, or when a court is able to impose that responsibility on a perpetrator through its judgment and sentence.

I note in passing that in one of those pieces of political serendipity, we are debating this order on the day that the Prime Minister meets a delegation of the Omagh families. I very much hope that this legislation marks a step toward their finding the justice they seek.

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My second point is on the order’s budgetary impact. Will the Minister confirm my understanding that an extraordinary payment of legal aid made under either limb of the order would have to be funded from within the Northern Ireland Legal Services Commission’s existing budget? If I am right in that assumption, have the Government considered the possible impact on routine legal aid funding of one or more decisions being taken to make use of the discretionary powers granted by the order? It seems almost inevitable that any case receiving support under the order will be a high-profile and controversial one, for which the legal aid bill could be substantial. My worry is that people who would otherwise qualify under the normal legal aid rules might lose out, or that their cases reaching a court hearing could be delayed until a stream of legal aid funding becomes available to them.

My third point is on the future of the scheme if, as the Government hope, criminal justice is devolved to a Northern Ireland Executive and Assembly. The Minister said that the order gives the Lord Chancellor the power to direct the Northern Ireland Legal Services Commission to provide legal aid in certain exceptional cases. I therefore assume that if criminal justice is devolved, the power of direction might lie with a Justice Minister at Stormont. In the context of Northern Ireland, that clearly raises some tricky political issues, depending on which person from which political party holds that portfolio. I should be grateful if the Minister clarified that point, but I make it clear to her that in moving the order, she has our support.

10.44 am

Greg Mulholland (Leeds, North-West) (LD): My colleagues and I also welcome you to the Chair, Lady Winterton. It will please the Committee to learn that I shall be briefer still.

I echo what has been said about Omagh. Lying in bed this morning, I listened to one of the Omagh victims’ relatives remind us of the horror of that day. Given last week’s debate on the Northern Ireland (Offences) Bill, we are all aware that the need for justice remains extremely important in moving matters forward in Northern Ireland.

The Minister has our full support for the order, but I have two questions for her. Omagh aside, will she spell out exactly what cases she envisages the order covering? Secondly, given that there is a specific pot for legal aid and that the overwhelming bulk of it is used to deal with criminal cases, civil cases often do not get the support that they deserve. Does the order do anything to redress that balance?

10.46 am

Bridget Prentice: I thank members of the Committee for their contributions and for the way in which they expressed them. Like the hon. Member for Aylesbury (Mr. Lidington), I met members of the Omagh families a couple of months ago. I can only admire the dignity and resolve that they have shown in taking their case forward.

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The order will allow the Lord Chancellor to direct or to authorise funding, so the hon. Gentleman can be assured that funding will be available. It is up to Parliament as a whole to decide whether such functions will be transferred to the Northern Ireland Assembly, so that is perhaps a matter for debate at a later date. All applicants for funding will be treated in exactly the same way. We will be ready to consider any request received from the commission; in the first instance, however, it will be for the commission to consider whether funding should be available.

The exceptional cases system in England and Wales works very well at the moment. For example, if someone dies in custody, the family in question might be outside the scope of legal aid provision, but the commission could put such an exceptional case to a Minister, who would then consider whether funding should be granted. As the hon. Gentleman acknowledged, I cannot go into the same amount of
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detail as he can because I may have to consider applications under the order. As such, I can do little more than say that each application will be considered on its own merits.

I will finish by quoting the judge speaking of the decision to fund the Omagh civil action. He said:

    “no doubt the overwhelming majority of right thinking people in this jurisdiction, so many of whom have suffered as victims of terrorist crimes in respect of which no-one has ever been brought before a court, would have little difficulty in giving their support to such a strategy.”

Every member of this Committee will endorse those comments. With that, I commend this small but important order.

Question put and agreed to.


    That the Committee has considered the draft Legal Aid (Northern Ireland) Order 2005.

Committee rose at eleven minutes to Eleven o’clock.


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