DoJ must rescue, recover & reinvest in Legal Aid

The Department of Justice has chosen to ignore the scale of the access to justice crisis across Northern Ireland and has instead elected to focus upon ideologically driven policy experimentalism, according to the Bar of Northern Ireland.

The Bar of Northern Ireland response follows a Ministerial Statement from Naomi Long MLA (Monday 02 December) on a Department of Justice Enabling Access to Justice Programme. Chair of the Bar Council, Donal Lunny KC offered the following commentary:

“The number one priority for the Department of Justice should be to stabilise a system of Legal Aid which is at serious risk of collapse because of long-standing underinvestment and the continued failure of the Department to conduct renumeration reviews when required to under statute.

“Barristers in civil and criminal practice are working at 130% capacity as they contribute to dealing with post-Covid delays and to speedup justice for the benefit of all court users. Yet, the Justice Minister’s statement on Legal Aid reform failed to acknowledge the existence of an access to justice crisis.

“The Minister omitted to mention the ongoing withdrawal of services on the part of the Criminal Bar Association (CBA), or the increasingly complex, and financially unviable, nature of much Legal Aid work that is driving practitioners into other practice areas rather than attempt to work for fees which have not been increased since 2005 and are worth 50% of their original value The Ministerial Statement also failed to acknowledge the crippling payment delays that practitioners are subjected to at present.

“An immediate, albeit partial, uplift in Legal Aid fees is welcome but it will not restore fees to anywhere near where they should be and seems destined to be immediately eroded by other planned reforms. The approach being adopted will merely apply a temporary sticking plaster rather than the urgent cure that is required.

“Naomi Long MLA spoke of the “ambition” of her Department regarding Legal Aid reform; the Bar would suggest that the Department is gravely underestimating the challenge of creating the conditions necessary in order to realise that ambition.

“Furthermore, contained within these proposed reforms lies the potential for unchecked Departmental overreach that would represent a retrograde attack on the independence of the legal profession, and in turn the Judiciary, in this jurisdiction.

“Not only has the Department been selective in its approach to the independent recommendations of the Burgess review (choosing to adopt only a portion of Judge Burgess’ recommendations) but, amongst other measures aimed at curbing independence, it wants unnecessarily to duplicate regulatory scrutiny of the legal profession and fetter the independent expert judicial role of the Taxing Master. Doing so without providing either detail of its proposed alternative to taxation nor any assurance that its opaque alternative will have the relevant competence and safeguards to perform what is an essential function effectively and impartially.

“In the circumstances, it is reasonable to ask why the Department seems to fear, rather than place trust in, the recommendations and reasoned decisions of independent experts.”

Donal Lunny KC added: “Given its serious repercussions, this reform process must be underpinned by the use of robust, transparent, contextualised, and independent evidence and data if it is to deliver better access to justice outcomes. This reform process must represent evidence-based policy making rather than policy-based evidence making.

“Members of the profession have consistently called for more detailed and meaningful sharing of information with them about the basis for the reforms. Although the Minister may consider that her priority was to inform the Assembly first, this has resulted in a protracted period of what can only be described as superficial engagement with the profession which has come at the price of alienating key stakeholders.

“Disappointingly, the Justice Minister referenced the current level of Legal Aid spend during her statement to the Assembly without providing the necessary and important context. The Minister once again quoted the total expenditure without explaining the associated demand and omitted to set out the direct correlation between public expenditure and the greater socio-economic challenges that exist in Northern Ireland. Unsurprisingly, this causal relationship results in public expenditure per capita being higher than the UK average in several areas and is certainly not confined to Legal Aid.

“The Bar of Northern Ireland remains committed to engaging in good faith in meaningful consultation and collaboration with the Department of Justice in evidence-led reform in order to secure change to the system of Legal Aid which will enhance, rather than obstruct, access to justice and which will safeguard, rather than erode, the essential independence of both the legal profession and the judiciary. It is not too late for the Department to choose to make a similar commitment rather than embarking on a process of ideologically driven policy experimentalism.”

ENDS

Sinead McIvor - 07701 302 498