Submission to Department of Justice Consultation Civil Legal Aid Remuneration:
Nov 2013

Our Mission: Promoting human rights and holding governments to account, drawing upon the lessons learned from the conflict in Northern Ireland.

Our Expertise and Achievements: Since 1990 we have provided support and services to anyone whose human rights were violated as a result of conflict. Our interventions have reflected our range of expertise, from the right to a fair trial to the government’s positive obligation to protect life. We have a long record of working closely with NGOs and government authorities to share that expertise. We have received wide recognition, as the first winner of the Parliamentary Assembly of the Council of Europe’s Human Rights Prize in 2009 alongside other honours.

Our Judicial Review Experience: We have substantial experience as a third party intervener in a number of judicial review applications before the courts of England and Wales and in Northern Ireland. We have intervened as both a sole third party intervener and as a co-intervener with other NGOs in third party applications. Our interventions have included challenging the length of pre-charge detention in terrorist cases in Northern Ireland, challenging the certification of trial without jury in Northern Ireland and the expectation to speak Irish in the courts in Northern Ireland. We have also intervened in applications before the European Court of Human Rights (ECtHR) where human rights standards and obligations have been engaged.

We have assisted clients and campaigns in Northern Ireland in relation to the legacy of conflict related deaths and this has included our interaction with the Police Service of Northern Ireland Historical Enquiries Team (PSNI HET), the Office of the Police Ombudsman for Northern Ireland (OPONI), the inquest process and the statutory inquiries including Bloody Sunday and the demand for inquiries into the Omagh Bombing 1998 and the Ballymurphy Massacre 1971. Much of our work has therefore necessitated engagement with the judicial processes in Northern Ireland and this informs our broader range of work when there has been a human rights violation and the subsequent requirements to discharge the investigatory procedural obligation which arises when the relevant Article of the European Convention on Human Rights (the Convention) is engaged.

The Context of the Current Consultation

As a human rights NGO we are aware of the demands for cost effective measures being applied to the administration of justice regime in an age of austerity, recession and competing demands. We adhere to the needs for budgetary control and restraint within the administration of justice regime to ensure systems run efficiently and with minimal financial waste. We also appreciate the difficulties confronted by a political policy maker within the Executive when economic drivers become paramount in maintaining the departmental credibility within a political process. However, this Consultation needs to be approached in terms of the context of prevailing aspects of civil litigation in Northern Ireland in addition to the demands of the rule of law, common law principles and justice. In addition, a budget driven appraoch must understand changing demands and other dyanamics including the consequences of the devolution of criminal justice in Northern Ireland.

In terms of the internal consistency of this Consultation two immediate points can be made. First, we argue that its is misplaced to conflate fee structures for what are three distinct tribunal regimes (Magistrates, County Court, High Court). Second, we argue that the rules governing legally aided cases are not as complex as the Consultation suggests and that appropriate governance structures are in place to regulate the current structure of civil remuneration. Third, regarding the described benefits to legal aid reform the three benefits described are without evidence, explanation or context. In addition, we note that the initial impetus for this Consultation developed from the post devolution Access to Justice Review Consultation.

The Consultation notes that the civil legal aid scheme assists the state to meet its obligations under the relevant Articles of the ECHR. However, the proposals serve to inevitably restrict access to justice and undermine the rule of law and therefore may engage breaches/violations of the relevant Articles of the ECHR. This is a potentially serious restriction in the current juridical-political context in Northern Ireland where the legacy of the past is so important is determining the present anf the future as being discussed by the Panel of Parties. We foresee challenges under Article 6 in addition to continued the criticism of the UK government in its non-compliance with obligations arising under Article 2 (see: McCaugheyECtHR) in relation to Northern Ireland and the ‘package of measures’ recommended to the Council of Ministers following the McKerr EctHR group of cases and most recently with the contoversies surrounding the investigative effectice of both the PSNI HET and OPONI.

Northern Ireland has a distinct litigation ‘surplus’ reflecting its particular circumstances. Specifcally this means reflecting the litigation linked to the legacy cases of the conflict related deaths during the conflict in Northern Ireland.

  • The legacy cases have and continue to generate a range of judicial challenges which are uninque to Northern Ireland because of the conflict.
  • The legacy cases have also generated challenges to the available range of investigatory processes including the PSNI HET and OPONI in addition to the Coroner’s Office and the campaign’s for public inquiries including into the murder of Patrick Finucane 1989
  • In addition exceptional legal aid funding has previously be granted to high-profile claimants including the victim’s of the Omagh Bomb 1998 in civil actions
  • The legacy cases often engage Article 2 of the Convention in order to discharge the investigatory procedural obligation which arises when there has been a violation either by the use of lethal force of the state or through a failure of the state to protect life (and a devloping Article 3 investigatory obligation in relation to those suffering injury during the conflict). Challenges to state mechanism’s to investigate will be bought via judicial review in the High Court of Northern Ireland including analogous challennges in relation to disclosure of material held by agencies of the state
  • The continued specific security/policining security situation in Northern Ireland creates a litigation surplus in terms of potential challenges to aspects of the counter-terrorist legislative and public order regimes (see for example the judicial review actions in relation to Duffy and Arthurs); see also in relation to wrongful arrest by the police, prisons conditions, and the conditional prison licence system.

We refer the Minister to the Part 8 Civil Legal Aid (Procedures) Regulations which refers to ‘special cases’ work applicable in England and Wales. Special case status within the civil legal aid remuneration consultation is not anticipated. However, we suggest that such a category of work would accommodate both legacy and contemporary Article2 challenges. We note that that High Court of Northern Ireland has now established a Legacy Department to work on the judicial review applications and other actions when legacy case facts are in play. Such departments or units also exist within the PSNI (discreet from the HET), OPONI (Historical Directorate) and with the Northern Ireland Office (NIO).