Report on the Legal Aid and Coroners' Courts Bill (NIA 33/11-15)

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Executive Summary

1. This report sets out the Committee for Justice’s consideration of the Legal Aid and Coroners’ Courts Bill.

2. The Bill consists of 13 clauses and 3 schedules and proposes to make arrangements to dissolve the Northern Ireland Legal Services Commission and transfer its functions and staff to an Executive Agency to be established within the Department of Justice; sets in statute a number of safeguards to protect the independence of individual decisions on the granting of civil legal aid by the Director of Legal Aid Casework; and makes the Lord Chief Justice the President of the Coroners’ Courts and requires him to appoint a Presiding Coroner.

3. During the Committee Stage of the Bill, the Committee also considered a proposed new provision from the Attorney General for Northern Ireland to amend the Coroners Act (Northern Ireland) 1959, which provides him with the power to direct an inquest where he considers it ‘advisable’ to do so, to confer on him a power to obtain papers and provide a clear statutory basis for disclosure in circumstances relating to deaths in hospital or where there was otherwise a suggestion that medical error may have occurred.

4. The Committee received written submissions from 20 organisations and held an oral evidence event on 14 May 2014 with 7 stakeholders to discuss various issues relating to the Bill and the Attorney General attended the Committee meeting on 28 May 2014 to discuss his proposed amendment. The Committee also explored the issues raised in written and oral evidence with departmental officials both in writing and in an oral briefing. The Committee also sought advice from the Examiner of Statutory Rules on the delegated powers within the Bill to make subordinate legislation and the choice of Assembly control provided for each power.

5. Given that the Bill is largely technical in nature and following a request from the Minister of Justice for a shorter Committee Stage to enable the Bill to receive Royal Assent by autumn 2014, the Committee completed scrutiny of the Bill within a 10-week period.

Clauses of the Bill

Part 1

6. Part 1 of the Bill contains 6 clauses and 2 schedules the majority of which the Committee was content to support subject to two amendments proposed to regulation making powers contained in Schedule 2.

7. The Committee was content to support the primary aim of the creation of an Executive Agency within the Department of Justice to administer the delivery of legal aid as provided by Clause 1 recognising that this represented an opportunity to address issues associated with the Legal Services Commission, improve governance arrangements relating to legal aid and increase transparency, accountability and efficiency.

8. In relation to Clause 2(1) of the Bill, which requires the Department to designate a civil servant in the Department as the Director of Legal Aid Casework, in the evidence received by the Committee questions were raised regarding whether the post was only available to civil servants or whether a person outside the civil service could be appointed. Departmental officials clarified that the post did not have to be filled by a civil servant and there were a number of ways in which the post could be filled. Whilst the Committee agreed it was content with Clause 2 as drafted some Members expressed the view that it could be better worded to ensure that there is not a perception that a person within the Department must be appointed to the post of Director of Legal Aid Casework.

9. A substantial number of those who provided written and oral evidence in relation to Clause 3 raised concerns regarding whether there are adequate and sufficient safeguards included to protect and ensure the independence of decision-making once the Executive Agency is established and the Director of Legal Aid Casework appointed to take decisions on individual cases and the grant of civil legal aid. The Department of Justice in response outlined the range of safeguards in the legislation to protect the independence of individual decisions on the grant of civil legal services which it considered to be sufficient and would be fully compatible with ECHR Article 6(1).

10. The Committee was content to support Clause 3 with some Members indicating they were satisfied that any direction issued by the Minister or the Department could not override the provisions of the relevant primary or secondary legislation and noting that the requirement to follow directions and guidance issued by the Minister already exists.

11. Other Members however had reservations about the proposed framework to ensure the independence of the Director in relation to decisions in individual cases, whether policy constraints could impact negatively on the exercise of that independence because a category of cases could be excluded from consideration by the Director of Legal Aid Casework and whether proper safeguards were in place and indicated that they may wish to give further consideration to these issues and the two amendments proposed by the Law Centre (NI) at a later stage.

12. Clause 6 introduces Schedule 2 of the Bill which contains a large number of amendments relating to Part 3 of the 1981 Order in relation to representation in criminal proceedings and to the 2003 Order in relation to civil legal services and criminal defence services. While the majority of amendments are technical in nature, Schedule 2 also covers areas of substantial amendment including the establishment of Appeal Panels which will hear appeals against decisions taken on the provision of civil legal services.

13. The Assembly Examiner of Statutory Rules advised the Committee that both regulation making powers relating to new articles 36A, 36B and 38A(1) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (as inserted by paragraph 1(5) and (6) of Schedule 2 of the Bill) which makes provision for rules in respect of the assignment of solicitor and counsel where a criminal aid certificate has been granted and new Article 20A of the 2003 Order (paragraph 6(22) of Schedule 2 of the Bill) which provides for rules for the constitution and procedure of Appeal Panels in respect of individual decisions relating to the granting of civil legal services were significant and should be subject to the draft affirmative procedure on the first and subsequent exercise of the powers rather than subject to the draft affirmative procedure on first exercise with subsequent rules being subject to the negative resolution procedure as currently provided for in the Bill. The Committee agreed with the Examiner’s assessment and indicated that it would support amendments to make the two changes.

14. The Department subsequently advised the Committee that, in light of its decision, the Department would instruct Legislative Counsel to draft the necessary amendments to be brought forward at the appropriate stage.

Part 2

15. The Committee supported the inclusion of the provisions in Part 2 of the Bill to make the Lord Chief Justice the President of the Coroners’ Courts and require the Lord Chief Justice to appoint a Presiding Coroner noting that they were intended to assist in the better administration of the Coroners’ Courts and case management of inquests.

Part 3

16. The 5 clauses contained in Part 3 and in Schedule 3 of the Bill cover technical issues and were supported by the Committee.

Proposed New Provision

17. The Attorney General wrote to the Committee asking it to consider a proposed amendment to the Coroners Act (Northern Ireland) 1959 which provides him with the power to direct an inquest where he considers it ‘advisable’ to do so, to confer on him a power to obtain papers and provide a clear statutory basis for disclosure in circumstances relating to deaths in hospital or where there was otherwise a suggestion that medical error may have occurred. The Committee took the opportunity to seek views on the proposed provision when requesting written evidence on the Bill including from the Minister for Health, Social Services and Public Safety and the Health Trusts.

18. Having considered the responses received and discussed the proposed provision with the Attorney General the Committee agreed that it was generally supportive of the principle of the proposed provision. However, it was of the view that the proposal raised a number of issues which required further scrutiny and consideration which could not be undertaken within the timescale for completion of the Committee Stage of this Bill. The Committee agreed that if an alternative Bill could be found within which the amendment could be taken forward and considered properly in the foreseeable future the Committee would support that approach.

19. The Committee considered and agreed its report on the Legal Aid and Coroners’ Courts Bill at its meeting on 18 June 2014.

Introduction

Background to the Bill

1. The Legal Aid and Coroners’ Courts Bill was introduced to the Northern Ireland Assembly on 31 March 2014 by the Minister of Justice and was referred to the Committee for Justice for consideration, in accordance with Standing Order 33(1), on completion of the Second Stage on 8 April 2014.

2. The Bill (as introduced) has 13 clauses and 3 schedules.

3. The main purpose of the Bill, resulting from a recommendation of the Access to Justice Review and which forms part of the wider programme of reform of the legal aid system in Northern Ireland, is to make arrangements to dissolve the Northern Ireland Legal Services Commission (LSC) and transfer its functions and staff to an Executive Agency to be established within the Department of Justice. The Bill will also set in statute a number of safeguards to protect the independence of individual decisions on the granting of civil legal aid by the Director of Legal Aid casework.

4. Linked to the transfer of the LSC’s functions to the newly created Agency, the Bill will make a series of amendments to the Access to Justice (NI) Order 2003, only limited provisions of which have been commenced, to reflect the fact that the Department of Justice rather than the LSC will have statutory responsibility for the administration of legal aid.

5. The Bill will also make the Lord Chief Justice the President of the Coroners’ Courts and require him to appoint a Presiding Coroner. These provisions will formalise the Lord Chief Justice’s responsibilities in relation to the Coroners and Coroners’ Courts in line with existing arrangements for the other judiciary and courts in Northern Ireland and follows from a recommendation in the 2000 Review of the Criminal Justice System in Northern Ireland.

The Committee’s Approach

6. Following a request from the Minister of Justice for a relatively short Committee Stage to enable the Bill to receive Royal Assent by autumn 2014, and given the Bill is largely technical in nature, the Committee decided that a Committee Stage of 10 weeks would be sufficient to provide for appropriate scrutiny of the Bill. At its meeting on 30 April 2014 the Committee therefore agreed to seek an extension to the Committee Stage of the Bill until 20 June 2014 and this was supported by the Assembly on 13 May 2014.

7. Prior to commencement of the Committee Stage of the Bill, the Attorney General for Northern Ireland wrote asking the Committee to consider a proposed new provision to the Bill to amend the Coroners Act (Northern Ireland) 1959. Under section 14(1) of the Act the Attorney General has the power to direct an inquest where he considers it ‘advisable’ to do so but has no powers to obtain papers or information that may be relevant to the exercise of that power. The Attorney General indicated that he had experienced some difficulty in recent years in securing access to documents that he needed and his proposed amendment to the 1959 Act would confer a power on him to obtain papers and provide a clear statutory basis for disclosure. The Attorney General indicated that the principle focus of his concern was deaths that occur in hospital or where there was otherwise a suggestion that medical error may have occurred.

8. The Committee published a media sign-posting notice on 4 April 2014 seeking written evidence on the Bill and on the Attorney General’s proposed amendment and also wrote to a range of key stakeholders inviting their views. Stakeholders were asked to structure written submissions to address the specific clauses of the Bill. In response to the call for written evidence the Committee received 20 written submissions and these are included at Appendix 4.

9. The Committee was first briefed by departmental officials on the principles and final content of the Legal Aid and Coroners’ Courts Bill on 13 March 2014. The Committee also held an oral evidence event on 14 May 2014 with representatives from seven organisations to discuss a range of issues relating to the Bill. The Committee explored the issues raised in the written and oral evidence both in writing and with departmental officials when they attended the meeting on 28 May 2014. The Committee also discussed his proposed amendment with the Attorney General for Northern Ireland at the meeting on 28 May 2014. The Minutes of Evidence are included at Appendix 2 and memoranda and papers from the Department of Justice are included at Appendix 3. The correspondence from the Attorney General for Northern Ireland and the Minister for Health, Social Services and Public Safety regarding the proposed amendment to the Coroners Act (Northern Ireland) 1959 are included at Appendix 5.

10. The Committee sought advice from the Assembly Examiner of Statutory Rules on the range of delegated powers within the Bill to make subordinate legislation and the choice of Assembly control provided for each power. The Examiner raised issues regarding new articles 36A, 36B and 38A(1) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (as inserted by paragraph 1(5) and (6) of Schedule 2 of the Bill) which makes provision for rules in respect of the assignment of solicitor and counsel where a criminal aid certificate has been granted and new Article 20A of the 2003 Order (paragraph 6(22) of Schedule 2 of the Bill) which provides for rules for the constitution and procedure of Appeal Panels in respect of individual decisions relating to the granting of civil legal services. The Examiner indicated that both regulation making powers were significant and should be subject to the draft affirmative procedure on the first and subsequent exercise of the powers rather than subject to the draft affirmative procedure on first exercise with subsequent rules being subject to the negative resolution procedure as currently provided for in the Bill. This issue is covered in detail in the main body of the report.

11. The Committee carried out an initial clause-by-clause scrutiny of the Bill at its meeting on 4 June 2014 and undertook its formal clause-by-clause scrutiny on 11 June 2014.

12. At its meeting on 18 June 2014 the Committee agreed its report on the Bill and ordered that it should be printed. The relevant extracts from the Minutes of Proceedings are included at Appendix 1.

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