Legal Aid, Human Rights and the Legacy

Rights NI is delighted to welcome this guest post from Christopher Stanley of KRW LAW LLP

“Legal aid is a service which the modern State owes to its citizens as a matter of principle. It is part of the protection of the citizen’s individuality which, in our modern conception of the relationship between the citizen and the State, can be claimed by those citizens who are too weak to protect themselves. Just as the modern State tries to protect the poorer classes against the common dangers of life … so it should protect them when legal difficulties arise. Indeed, the case for such protection is stronger than the case for any form of protection … (the) State is responsible for the law. That law again is made for the protection of all citizens, poor and rich alike. It is therefore the duty of the State to make its machinery work alike, for rich and the poor.” (E J Cohn ‘Legal Aid and the Poor: A Study in Comparative Law and Law Reform’ (1943) 59 LQR 250 at page 256)

When a political order determines that prevailing economic conditions constitute the need for austerity in the form of fiscal probity and prudence, no matter on what criteria that determination is made (when a zero rate of inflation is achieved, unemployed is at a record low and the national debt is negligible), then welfare provision will be a primary target for reduction. The politicians, civil servants and economists of the Treasury will levy the imposition of welfare budget cuts in a series of negotiations or ultimations depending on the effect of voting predictions and the political estimation of popularity of measures amongst the franchised electorate. Legal aid provision will always be in this matrix of expediency in the name of austerity and economic progress as its political worth is negligible.

And so it came to pass. In England and Wales the economic and ideological drivers imposed financial and practical restrictions on access to justice and the provision of legal aid through the Legal Aid and Sentencing Provisions Act 2013 (LAPSO).  A similar measure was introduced by the Department of Justice of the Northern Ireland Executive last year and I commented upon this at the time (see: Legal Aid and the Legacy). This Bill will dissolve the maligned Northern Ireland Services Commission (NILSC), an executive agency of the devolved administration, and replace it with the England and Wales model of a Legal Aid Casework Directorate within the Department of Justice thus creating a conflict of interest when the offices of the state in Northern Ireland, or the Northern Ireland Office, are being sued.

The dismantling of barriers which maintained the integrity of independence in the provision of legal aid funding and provisions to restrict access to justice are being criticized by the judiciary in England and Wales (see for example the recent judgment of the Administrative Court in R (Joanna Letts) v Lord Chancellor [2015] EWHC 402 at Letts). In Northern Ireland, at the behest of the Treasury at Whitehall, the Executive at Stormont has determined that the Department of Justice must contribute to the austerity measures by a 15% budget cut which includes the decision by the Minster of Justice to impose a 15% levy on legal aid (see: Stormont 17 02 2015) which means that all legal aid bills would be reduced by 15% at point of payment. There has been much expected opposition to this proposal from within the legal profession, the practitioners who ‘benefit’ the most from the legal aid. The Northern Ireland Law Society and the Bar Council of Northern Ireland have both been vocal in their opposition (see for example: BBC 10 02 2015). The Minister, David Ford, is perplexed as to why there now been political opposition to his Department’s proposal (see: BBC 26 02 2015).

There may be a number of reasons why this proposal will not make it onto the statute book in Northern Ireland no matter what the outcome of the forthcoming General Election. It may be because of simple political opposition to the proposal and being unrelated to the proposal itself but concerned rather with the larger economic landscape. In addition, the Minister has now missed the deadline and Stormont has been dissolved pending the General Election having failed to get the proposal placed on the agenda of the Justice Committee.

Other factors may be at work:

  • A levy is a form of taxation and the devolved administration does not have tax raising powers so the proposal may not be constitutionally available
  • The proposal requires a public consultation, no matter how brief, and no such period of consultation has yet been announced by the Minister and with the rest of the UK we are now in a period of political purdah
  • The proposal requires a Northern Ireland Act 1998 section 75 equality assessment to be undertaken as the measure would need to be analaysed against current user-take up of legal aid in this jurisdiction
  • The 15% levy demands to be considered against the Minister’s overall understanding of the legal aid budget in this jurisdiction and why the demands here are proportionality higher than in the rest of the UK. Might it be because of the greater levels of socio-economic deprivation including in housing and employment which leads to a greater legal aid budget burden which needs to be addressed and assessed by other welfare reform measures?
  • Might this point not be related to the fact that Northern Ireland is a post-conflict transitional society unique within the UK and with its own specific economic burdens because of this fact? Might the cost of the peace have a financial dividend attached?
  • Further, ‘the particular circumstances’ of Northern Ireland includes the out-workings of the Legacy of the Conflict which includes litigation in the absence of alternative State mechanisms to investigate Conflict related human rights violations. The State – at Stormont and at Westminster – cannot evade the investigatory procedural obligations required under Article 2 of the European Convention on Human Rights which protects the right to life and is a key element in many Conflict related cases.
  • The State cannot avoid the costs of complying with human rights standards in relation to providing truth, justice and accountability for the Conflict related human rights violations that occurred and that the issue of Policing the Past in Northern Ireland comes at a cost and the fact that all victims of the Conflict should be able to pursue the truth, obtain justice and achieve accountability should be paid for by the State

An argument to oppose the 15% legal aid levy necessarily implicates and exposes other sectors of the welfare budget to attack through cross-subsidization. That is the question of priorities for which our politicians are elected, the work of legal aid lawyers is to a provide a service to clients to a recognised standard be it in  criminal defence context or in the context of litigating the Legacy of the Conflict because the State and not yet provided a human rights compliant alternative.

Holding one’s breath for the out-workings of The Stormont House Agreement may cause the brain to be starved of oxygen.