Legal aid and Coroner's Courts Bill – two for the price of one!
06 November 2014
Legal aid is a current hot topic in both England and Wales and Northern Ireland. It has recently been reported that Northern Ireland has the world’s most expensive legal aid budget relative to the size of its population. Recent figures published by the Northern Ireland Legal Services Commission show that civil and criminal legal aid payments totalled £99.2 million in the year 2011-2012 and £91.8 million in the year 2012-2013. Following the first year of civil justice reforms in England and Wales, figures revealed that access to civil legal aid had fallen by more than half and some areas of law have become almost entirely inaccessible for state funding. The number of civil cases granted funding for representation and legal advice has dropped by 62%.
There has been a vast amount of media attention placed upon legal aid cuts with newspapers publishing stories containing shocking claims, such as one published by the Guardian newspaper stating, ‘Women will die’, as victims of domestic violence are being put at increased risk due to the tightening of legal aid rules and budget cuts. Headlines such as this have brought the issue of legal aid cuts firmly into the spotlight.
In England and Wales, the Legal Aid, Sentencing and Punishment of Offenders Act came into force in April 2013. The Act was introduced in an attempt to cut the annual legal aid bill of £2 billion by £350 million each year. The Act has restricted the types of case where legal aid funding is available, removing some types of case from the scope of funding, such as personal injury cases and almost all clinical negligence cases (the exceptions being cases of neurological injuries to children which result in severe disability, however, to be eligible, the potential negligence must have occurred during pregnancy, childbirth or in the eight weeks following.)
The Judicial Executive Board sent a written submission to the Commons Justice Select Committee, providing evidence of the effects the changes introduced by the Act were having. One of the key findings in the judges’ submission was that there had been a notable increase in the number of parties to a case that did not have legal representation. The evidence points to a system which is now restricting access to justice and undermining the principle of equality before the law. In addition, there was evidence of an adverse impact upon the administration and efficiency of the courts, in situations where legal aid was removed and individuals had become self-represented. Reducing the legal aid budget has not created a more efficient and cost effective system in England and Wales; on the contrary, it has only served to increase costs elsewhere in the court system.
Northern Ireland seems to be following suit with the introduction of the Legal Aid and Coroner's Courts Bill, which passed its final stage before the Assembly in October 2014 and is currently awaiting Royal Assent. The introduction of legal aid in Northern Ireland in 1965, allowed people on low incomes to receive legal representation, which they would have otherwise been unable to afford. In 2013, The Criminal Justice Inspection report called for radical reforms of the Northern Ireland Legal Services Commission in order to combat spiralling costs, with inspectors claiming that the system responsible for administering millions of pounds of legal aid payments was no longer fit for purpose. The Northern Ireland Minister of Justice, David Ford, stated that expenditure had gone unchecked for many years, but that it was a situation which would no longer be allowed to continue. He initially tackled criminal legal aid before turning his attention to civil legal aid in November of 2012.
The Legal Aid and Coroners’ Courts Bill was introduced by the Minister of Justice into the Northern Ireland Assembly on 31 March 2014. Members of the Legislative Assembly voted unanimously on 13 October 2014 to pass the Bill through its final stage. The main purpose of the Bill is to dissolve the Northern Ireland Legal Services Commission and transfer its staff, functions and responsibilities for administering legal aid to a new executive agency within the Department of Justice. David Ford has stated that the incorporation of legal aid costs into the Department of Justice would help control the current unsustainable legal aid expenditure.
A target has been set by the Department of Justice to reduce total legal aid spending to £75 million by 2015. However, this may be unrealistic given that legal aid expenditure in Northern Ireland stood at £91.8 million in 2012-2013. Despite opposition from the legal profession, criminal legal aid reform was taken forward in Northern Ireland in 2011. After the criminal legal aid budget cuts were made, David Ford turned his attention to civil legal aid, insisting that cost cutting would make the system more efficient. However, the legal profession has warned that it is the most vulnerable people who will lose out. Time will tell whether or not Northern Ireland will begin to see the same trends as those reported in England and Wales once the civil legal aid cuts are implemented.
Although not addressed in the Bill, the issue of legal aid for families in Inquests is a thorny issue. In an undoubtedly difficult process for a deceased’s family, financial concerns may preclude the instruction of a solicitor/ counsel to represent the family of the deceased. Interestingly, in October 2014, the High Court in England gave permission for a judicial review of the government’s policy on legal aid funding for Inquests. The Inquest relates to a gentleman who threw himself under a train, 4 days after his discharge from hospital. The family was denied legal aid, however, following issue of judicial review proceedings, this was reconsidered and legal aid was granted. Nevertheless, the sister of the Deceased decided to continue with the judicial review, as this may assist other families, experiencing similar problems. The Judge decided that there were issues of wider public importance and that the case should proceed. The Hearing is scheduled for January 2015.
A shorter section of the Bill aims to improve the accountability of the Coroners’ Courts and aims to formalise the Lord Chief Justice’s responsibilities in relation to Coroners and the Coroners’ Courts in line with the existing arrangements for other judiciary and courts in Northern Ireland.
In 2009, the Office of the Chief Coroner and Deputy Chief Coroner was introduced by the Coroners and Justice Act 2009. Their appointment was (and currently still is) made by the Lord Chief Justice in consultation with the Lord Chancellor. The proposals contained within the Bill regarding the legislative changes to be made to the Coroners’ Courts bring Northern Ireland into line with England and Wales in this area.
In Northern Ireland, there are currently 3 Coroners, Mr John Leckey, Ms Suzanne Anderson and Mr Jim Kitson.
Under Clause 7 of the Bill, the Lord Chief Justice is to be president of the Coroners’ Courts, and the clause makes provision for the Lord Chief Justice to be the President of the Coroners’ Courts by amending section 12 (2) of the Justice (Northern Ireland) Act 2002. This provision follows a recommendation in the ‘Review of the Criminal Justice System in Northern Ireland’ in 2000 that the Lord Chief Justice should be clearly identified as head of the judiciary, and that each tier of the judiciary should have a representative to facilitate the co-ordination and management of court business and to provide a figurehead.
Under Clause 8 of the Bill, the Lord Chief Justice is required to appoint a Presiding Coroner with responsibility for the Coroners’ courts, the other Coroners and Deputy Coroners. The Presiding Coroner will hold office in accordance with the terms of their appointment. If the office becomes vacant, the Lord Chief Justice may appoint another Coroner to act until a new appointment can be made. All of the Lord Chief Justice’s functions relating to Coroners’ Courts may be delegated to the Presiding Coroner, with the exception of the functions contained under section 36 of the Coroners Act (Northern Ireland) 1959, regarding rules and fees. The proposals regarding the Coroners’ Courts were not subject to public consultation, as it was considered unnecessary, due to the specialist and technical nature of the changes. Instead, a targeted consultation was undertaken with the Coroners.
For more information, please contact Francesca Lowry.