Legal Aid and the Legacy: The Importance of Independence

Rights NI is delighted to welcome this guest post from Christopher Stanley. Christopher Stanley was formerly Legal Officer with Rights Watch (UK) and is now working at KRW LLP.

The Legal Aid and Coroners’ Bill (LACB) is progressing through the legislative process of the Northern Ireland Assembly having been introduced by the Department of Justice (DOJ). It is now being scrutinized by the Committee for Justice. The introduction of this Bill has gone largely unnoticed but it does contain provisions which could have serious human rights implications for the administration of justice in Northern Ireland relating to litigating the legacy of the conflict. Whilst recognizing the need for efficiency in resource allocation of public funds in Northern Ireland this proposal creates a damaging conflict of interest.

Part 1 of the Bill proposes the dissolution of the Northern Ireland Legal Services Commission (NILSC) and the creation of the Director of Legal Aid Casework. This is not merely a cosmetic change of name. The NILSC is a non-departmental public body. The Director of Legal Aid Casework would be a civil servant located within the DOJ.  The office would, unlike the NILSC, not be independent from the DOJ. Therefore, decisions on the allocation of legal aid funding would become part of the Executive decision-making process.

The Bill introduces a safeguard to maintain the appearance of independence for the new Director of Legal Aid Casework: the DOJ, in effect the Minister of Justice, must not give guidance or directions with regard to an individual case for legal aid funding.

Nevertheless the DOJ can issue guidance and directions as to how the Director of Legal Aid Casework carries out his or her functions. Therefore, if the Minister of Justice issued guidance or directions regarding a general policy on judicial review, then the Director of Legal Aid Casework would have to comply with such a policy. This in turn would have implications on  the decision-making process in an individual legal application to which that DOJ policy or guidance would apply.

In addition, there is no appeal mechanism in the Bill to challenge such a decision.  Further, regarding exceptional legal aid funding application, which engage human rights, the Director of Legal Aid Casework still appears to be able to refer these to the Minister of Justice.  At present the independent NILSC refers these into the DOJ; now a civil servant would be referring within the DOJ. Importantly the Director of Legal Aid Casework will be a civil servant appointed by the DOJ. He or she will be therefore an officer of the Crown expected to work to the Northern Ireland Civil Service Code of Ethics whose ultimate responsibility is therefore to the Minister of Justice.

Part 1 of this Bill is a mirror to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPSO) which applies to England and Wales. The LAPSO Bill did not pass without opposition and criticism about independence, conflict of interest and the inadequacy of an appeal mechanism.  Similar arguments can be identified about the proposed Bill for Northern Ireland but there is an additional concern applicable to this proposal and it is about litigating the legacy of the conflict in Northern Ireland.

In the aftermath of the failure to secure political consensus on the Proposed Agreement of the Panel of Parties (Haass), and the fall out of the recent Stephen Downey judgment on the On the Runs policy in addition to the quashing of coroner’s verdict in the Patrick Pearse Jordan inquest and comments made by a former Secretary of State for Northern Ireland about conflict related prosecutions, the comments of current Secretary of State for Northern Ireland about the role of the state in the conflict and the on-going debacle of the PSNI HET and the backlog of cases in the OPONI Historical Directorate (the list is very long …), litigation issued by bereaved families on behalf of their loved ones is for many now the only option through which to obtain truth, justice and accountability. The failure of other alternatives has left many with no other possibility but to go to law. Victims are not forced into the courts but many may now consider litigation through judicial review or other civil action the only way forward to resolve the legacy of their loss and to salve the wounds incurred during the conflict.

The Bill in its proposed form is inherently flawed in this regard because in a judicial review application which seeks to challenge the state to fulfill its obligations to investigate following an Article 2 right to life breach or violation it will be the state which is joined as party to proceedings and this can include the Executive which could mean the Department of Justice – the administrator of legal aid funding. For example, it is foreseeable that given the back-log of conflict related inquests the Department of Justice could be challenged on the failure to adequately resource the coronial system in Northern Ireland and therefore impeding the demand for promptness in an Article 2 investigation. The applicant for legal aid funding would therefore ipso facto be seeking funding from the government department he or she wants to challenge. No matter how transparent the decision on funding in an individual legal application, the process cannot be described as being independent particularly in the absence of an appeal mechanism.

The devolution of policing and criminal justice to Northern Ireland following the Hillsborough Agreement of 2010 (excluding matters of national security) is a relatively recent constitutional development as part of the Belfast/GFA 1998. This Bill has been proposed too early for the Assembly in light of the continuing debate regarding dealing with the legacy of the conflict including the recent events and public remarks noted above.

Victims of the conflict, the bereaved and survivors, who want to undertake publically funded litigation including against the state, must be able to do so secure in the knowledge that their applications for legal aid are being decided by a rigorously independent authority given the severity of the issues for themselves and for society in post conflict Northern Ireland, distinguishable from political, constitutional and economic factors applying to England and Wales.