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rose to move, That the draft order laid before the House on
My Lords, the draft Legal Aid (Northern Ireland) Order 2005 amends the existing legal aid legislation in Northern Ireland by taking a power to enable the Lord Chancellor to direct or authorise funding in exceptional cases. This power is required because the legislation governing legal aid in Northern Ireland, pending full implementation of legal aid reform, is a restrictive and inflexible 1981 order which does not have an exceptional grant power. As such, the draft order seeks to ensure that exceptional funding is available in Northern Ireland, as it is in England and Wales, and that the Lord Chancellor can, in appropriate circumstances, exercise powers to compensate for the inflexibility of the 1981 order.
Your Lordships may be aware that the Lord Chancellor had previously sought to address this issue by bringing forward a transitional exceptional grant power under the Access to Justice (Northern Ireland) Order 2003. That transitional exceptional grant power worked well, providing important assistance in numerous cases, particularly in relation to inquests. However, as your Lordships may be aware, that transitional power was successfully challenged by way of judicial review by one of the defendants to the Omagh civil action. The defendant successfully challenged the funding provided to the Omagh families.
The draft order essentially replicates the exceptional grant provision set out in the now-repealed Section 76 of the Justice (Northern Ireland) Act 2002. Under the order, the Lord Chancellor can direct the Northern Ireland Legal Services Commission to fund categories of cases or, in response to a request from the commission, authorise funding for an individual case which falls outside the scope of the ordinary legal aid scheme. I repeat, this reflects the current position in England and Wales.
However, the draft order also enables the Lord Chancellor, in response to a request by the commission, to authorise funding generically or in respect of individual cases which are within the scope of the ordinary legal aid scheme. Your Lordships will note that this particular power is intended to compensate for the inflexibility of the powers currently available under the governing 1981 order. It is a transitional provision, until such time as the full range of powers under the Access to Justice Order becomes available to the commission and the Lord Chancellor.
The draft guidance, which I have made available to your Lordships' House, indicates that this power could be used to compensate for the systemic impediments within the 1981 order or to fund an individual, wholly exceptional case which is technically within the scope of the ordinary legal aid scheme and yet cannot secure funding. The Lord Chancellor would consider exercising this power only if the commission requested funding in a case where there were compelling reasons why it would be inappropriate simply to apply the rigid test set in the 1981 order.
Your Lordships may consider that a practical example of the use of this power would be to provide funding to those bringing the Omagh civil action. I cannot enter the realms of speculation, but your Lordships will note that under the terms of the order the issue of funding for the Omagh civil action or any other action is a matter in the first instance for the commission to determine should an application for legal aid be lodged. All I can say on behalf of the Lord Chancellor is that he would consider any request submitted by the commission on the merits of the case and against the general principles set out in the draft guidance. I commend the order to the House. I beg to move.
My Lords, I was delighted to hear the Minister say that the Lord Chancellor will consider the Omagh case. I understand that it is not feasible to refer to it at the moment, but I hope that he will listen very carefully to what the people of Omagh have to say about it.
I am grateful to the Minister for bringing this order to the House. I assure him that we on these Benches fully support it. Since the Access to Justice Act 1999, we have had a much better system of providing legal aid in England and Wales than has been the case in Northern Ireland. This order is timely in addressing that anomaly.
Granting legal aid in exceptional circumstances will bring Northern Ireland within Articles 2 and 6 of the European Convention on Human Rights. I have just two questions for the Minister. Are there restrictions on legal aid for civil cases? It seems that use of legal aid in criminal cases will inevitably use up a lot of specified money. Will there be any moves to redress the balance between legal aid for civil and legal aid for criminal cases if that proves to be necessary?
My Lords, I share the noble Baroness's pleasure in hearing that the Lord Chancellor will, in the context of the new powers that this order gives, be prepared to consider the Omagh case. Naturally, I hope that he will consider it favourably, although I understand from the Minister that no undertakings can be given in this respect until the moment comes when the Lord Chancellor has to exercise his discretion.
As the Minister explained, the order grants a power to enable the Lord Chancellor to grant legal aid in exceptional circumstances. As he also explained, the existing statutory basis for the provision of legal aid in Northern Ireland is the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981. That order contained no power to grant exceptional legal aid. It seemed that the Lord Chancellor had attempted to commence, in transitional form, the power in question in an earlier 2003 order. This order replaces the transitional mechanism. In as much as it simply provides a new statutory basis for the existing exceptional grant scheme, I support it.
My Lords, I am grateful for the supportive comments. The order—which is in effect transitional—is coming forward only because of the remarks of the judge in the case which I referred to earlier, who said that things were unsatisfactory and something needed to be done. Work is going on to bring in the full Monty, if I can put it that way, of the procedures that have already gone through the House, but it is necessary to do this now for lots of purposes.
As I said, it would be wrong of me to speculate about particular cases, although I have only referred to one by name and title. As I also said, the Lord Chancellor would have to look first of all at any determination from the commission, because that is where the applications would need to be made.
I assure the noble Baroness that in Northern Ireland at the present time there is no cap on the civil legal aid budget, so there is no cross-over between criminal and civil. There is ongoing reform of legal aid in Northern Ireland. Criminal remuneration is being reformed, and there is a programme of work in hand to reform civil remuneration as well.
That said, all I can say to the noble Lord and the noble Baroness is, thank you very much for the support.