1. Northern Ireland Legal Services Commission Presentation to Public Interest Litigation Support Project Wednesday 22 nd September 2010

2. Overview NILSC objectives Legal Aid Expenditure Current Funding Criteria NILSC levels of service Reform of Legal Aid Public Interest

3. The Commission’s aim is to provide high quality, customer focused services that target those in greatest need and demonstrate value for money

5. 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

6. Legal Advice & Assistance ‘Green Form Scheme’ Advice on any point of NI Law Means tested PACE Approximately 30,000 claims per annum £3.2m (£2m PACE, £1.2 Non Pace)

7. Assistance by Way of Representation 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

8. 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

9. 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)

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 –Certain Inquests –Public Interest –Multi Party Action –‘Omagh Civil Trial’

11. 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.”

12. 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.

13. 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

14. Judicial Review – Funding Code 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. 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. 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.

15. 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.

16. 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

17. 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”

18. 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

19. 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.ukwww.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.pdfhttp://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 12 th April 2010 – legislation and policy scrutiny. Justice Committee of the Northern Ireland Assembly established with remit which includes publicly funded legal services