Northern Ireland Legal Services Commission
Presentation to
Public Interest Litigation Support Project
Wednesday 22nd September 2010
Overview
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NILSC objectives
Legal Aid Expenditure
Current Funding Criteria
NILSC levels of service
Reform of Legal Aid
Public Interest
The Commission’s aim is to provide high
quality, customer focused services that
target those in greatest need and
demonstrate value for money
Percentage Breakdown of Legal Aid Expenditure by Business
Area 2008 - 2009 £82m
LAA
5%
Assistance By Way Of Representation
2%
7%
Children Order
Civil
Criminal
25%
61%
Current Funding Criteria
• The Legal Aid (General) Regulations (Northern
Ireland) 1965
• Legal Aid, Advice and Assistance (Northern
Ireland) Order 1981
– Schedule 1 lists the proceedings for which legal aid
may be given under Article 9 of the Order
• Access to Justice (Northern Ireland) Order 2003
Legal Advice & Assistance
‘Green Form Scheme’
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Advice on any point of NI Law
Means tested
PACE
Approximately 30,000 claims per annum
£3.2m (£2m PACE, £1.2 Non Pace)
Assistance by Way of
Representation
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Domestic Proceedings
Family Homes and Domestic Violence
PACE and Terrorism
Mental Health Review Tribunals (09/10
150 claims paid)
• Life Sentence Reviews & Parole Hearings
• Approx 3,300 claims per annum @ £1.8m
Children Order
• Children Order in Family Proceedings
Court
– Private Law & Public Law
– Guide to Case Management Public Law
Applications
• Approx 4,900 claims per annum @ £5.5m
Civil Legal Aid
• Annually receive 9,000 applications, pay
approx £25m (09/10)
• Means test – Legal Aid Assessment Office
• Merits test – applied in-house
• Paid 150 Judicial Review claims (09/10)
• Paid 311 Asylum & Immigration claims
(09/10)
SEGP
• Exceptional Grant
– Article l0A of the Legal Aid, Advice and Assistance
(Northern Ireland) Order 1981
• Lord Chancellor’s Guidance
• Commission’s Guidance
• Areas of funding
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Certain Inquests
Public Interest
Multi Party Action
‘Omagh Civil Trial’
The Funding Code
 Article 15 of the AJO requires the Commission to
prepare a Code setting out the criteria according to
which any decision on the funding of civil legal services
is to be taken – the Funding Code
 The Code has criteria and procedures both of which are
subject to the Assembly process
 Guidance will also be published by the Commission
• Judicial Review cases are a priority under the Funding code
• Special Criteria are set out in Section 7.1 of the Code Criteria for
court proceedings which concern: “Public Law challenges to the
acts, omissions or decisions of public bodies including, in particular,
challenges by way of judicial review or habeas corpus.”
Funding Code - Priorities
 special children proceedings;
 civil proceedings where the client is at real and immediate risk
of loss of life or liberty;
 After that the Commission would intend to generally give the
following categories higher priority than others:
 help with social welfare issues to enable people to avoid or climb
out of social exclusion, including help with housing proceedings (as
defined within the Funding Code) and advice relating to debt,
employment rights, and entitlement to social security;
 domestic violence proceedings;
 proceedings concerning the welfare of children (including
proceedings under Part IV and Part V of the Children Order
(Northern Ireland) 1995 not included above, adoption proceedings,
and proceedings concerning residence); and
 proceedings against public authorities alleging serious wrong doing,
abuse of position or power or significant breach of human rights.
Claims against public authorities
This is defined in Section 8.1 of Funding Code as
proceedings against public authorities alleging wrong
doing, abuse of position or power or significant breach of
human rights (other than judicial review or housing)
Investigative help may be refused if it is more appropriate
to pursue the public authority’s complaints procedure
Full representation will be refused if the prospects of
success are unclear or poor. If the prospects of success
are borderline the application may be funded if there is a
significant wider public interest, to be of overwhelming
importance to the client or raise significant human rights
issues
Judicial Review – Funding Code
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Judicial Review 7.1 of the Criteria refers to public law challenges to the acts
omissions or decisions of public bodies by judicial review or habeas corpus
applications.
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Applications may be refused if the act or decision is not susceptible to challenge
Investigative help may be refused if there are administrative appeals or procedures
which should be exhausted prior to proceedings
Full representation may be refused if the proposed respondent has not been given
reasonable opportunity to respond to the challenge or deal with the complaint unless
this is not practicable in the circumstances
Full representation may be refused for the leave stage if the prospects of success are
poor or unclear or borderline.
If prospects are borderline the applicant must demonstrate in their application that
that the case has significant wider public interest, is of overwhelming importance to
the client or raises significant human rights issues.
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PRESUMPTION OF FUNDING – if the case is at the post leave stage and has
significant wider interest or importance to the client or raises significant human rights
issues Legal Representation will be granted provided that the standard criteria are
satisfied and it does not appear to be unreasonable to grant funding.
Standard Criteria - representation
• Funding Code Criteria 5.6.4 -Cost Benefit Public Interest Cases:
If the claim has a significant wider public
interest, Full Representation may be refused
unless the likely benefits of the proceedings to
the applicant and others justify the likely costs,
having regard to the prospects of success and
all other circumstances.
Public Interest Advisory Panel
• PIAP formerly dealt with public interest cases under the
Funding Code in England and Wales
• Cases where there is “significant wider public interest
under the Funding Code”
• “Significant Wider Public Interest” defined as “the
potential of the proceedings to produce real benefits for
individuals other than the client (other than benefits to
the public at large which normally flow from proceedings
of the type in question)”
• Since 1 April 2010 the role of the Public Interest Advisory
Panel forms part of the jurisdiction of a new Special
Controls Review Panel
PIAP England and Wales – funded as being
“of wider public interest”
• Appeal to Social Security Commissioners –
recoupment of overpaid income support
• Challenge to a public authority to decline to
follow a decision of the Mental Health Review
Tribunal to transfer a patient to another hospital
to facilitate discharging the patient
• Judicial review of Environment Agency regarding
the legal framework relating to the disposal of
nuclear waste at military site
• Judicial review of the Criminal Injuries
Compensation Authority and the meaning of
“crime of violence”
PIAP previous decisions
refused funding as “No significant wider
public interest”
• Judicial Review of local authority plan to demolish
building in local conversation area
• Judicial Review of the powers of the Mental Health
Review Tribunal to commission an independent medical
report and challenge to delays in hearings
• Judicial Review of reduction to prisoners wages following
changes to Incentives and Earned Privileges Scheme
• Judicial Review of decision to close small rural primary
school and replace with a larger school
• Judicial review of the Crown Prosecution Service for its
decision not to prosecute an alleged rapist
Future provision of publicly funded
legal services
• The Fundamental Review of Legal Aid has commenced and will
report early next year - further details at www.dojni.gov.uk
• Vision of publicly funded legal services was outlined in June 2010 by
Justice Minister David Ford including “justice for all” and “bringing
law to the people” and to encourage dispute resolution whether by
litigation, or mediation or alternative dispute resolution.
• http://www.dojni.gov.uk/Homepage/minister_of_justice_speech_07.0
6.10.pdf
• Role of the Northern Ireland Assembly since Justice powers were
devolved on 12th April 2010 – legislation and policy scrutiny.
• Justice Committee of the Northern Ireland Assembly established
with remit which includes publicly funded legal services