Background and Policy Objectives
3.Under current arrangements, legal aid in Northern Ireland is administered by the Northern Ireland Legal Services Commission (“the Commission”), an executive Non Departmental Public Body (“NDPB”). The Department of Justice (“the Department”) is the sponsoring department for the Commission. The main primary legislation regarding legal aid currently in operation is the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (“the 1981 Order”) and the Access to Justice (Northern Ireland) Order 2003 (“the 2003 Order”). However, to date only limited provisions in the 2003 Order have been commenced.
4.In September 2010, the Minister of Justice, David Ford, commissioned a review of Access to Justice in Northern Ireland, including criminal and civil legal aid. The work has its origins in the provisions of the Hillsborough Castle Agreement 2010. The final Report of the Review of Access to Justice Northern Ireland was published in September 2011 and, following consultation, the Minister published his response to the Assembly on 2 July 2012.
5.One of the principal recommendations of the Access to Justice Review was that the body responsible for legal aid delivery (the Commission) should become an Executive Agency within the Department. Changing the delivery arrangements from a NDPB to an Executive Agency will help to increase transparency, accountability and efficiency in line with Government policy; reduce the cost of administration; and improve financial modelling, monitoring and forecasting. The Review also recommended that the Chief Executive should be a statutory office holder responsible for decisions on civil legal aid applications without any involvement on the part of the Minister, any political institution or staff in the core of the Department. The Minister accepted the Review recommendation that individual decisions should be taken independently of government and instructed his Department to carry out a detailed analysis of the consequences of delivering the administration of civil legal aid through an Executive Agency.
6.The analysis supported the recommendation of a change in status subject to a number of appropriate safeguards being put in place to protect the independence of decision making in the grant of civil legal aid. A set of safeguards is included in the Act.
7.The main purpose of the Act is therefore to make arrangements to dissolve the Commission and transfer its functions and staff to the Department. It will also set in statute a number of safeguards to protect the independence of the individual decisions on the grant of civil legal aid.
8.Linked to the transfer of the Commission’s functions to the newly created Agency within the Department, the Act will also make a series of amendments to the 2003 Order to reflect the fact that the Department rather than the Commission will have statutory responsibility for the administration of legal aid. The provisions in Articles 10 to 20 of the 2003 Order regarding civil legal services, with the exception of the Funding Code, will be commenced on the same date that the Commission is dissolved (and the Agency is created) – the “dissolution date”. Pending the commencement of the provisions in Article 21 to 31 of the 2003 Order regarding criminal defence services, representation in criminal cases will continue to be provided under Part 3 of the 1981 Order. Accordingly, as an interim measure, the Act will also amend Part 3 of the 1981 Order to replicate some provisions of the 2003 Order regarding the assignment of solicitors and counsel, a registration scheme and restriction on the disclosure of information for criminal legal aid.
9.The Act will also make the Lord Chief Justice the President of the coroners’ courts, and requires him to appoint a Presiding Coroner, thus formalising his responsibilities in relation to the coroners and the coroners’ courts in line with existing arrangements for the other judiciary and courts in Northern Ireland.
10.These provisions follow a recommendation of the “Review of the Criminal Justice System in Northern Ireland” (2000), that the Lord Chief Justice should have a clearly defined position as head of the judiciary, and that each tier of the judiciary should have a representative in order to facilitate the co-ordination and management of court business and to provide a figurehead. Those recommendations were implemented in the Justice (Northern Ireland) Act 2002, but arrangements for the coroners courts were not included at that time.