Official Report: Minutes of Evidence

Committee for Justice , meeting on Thursday, 11 June 2015

Members present for all or part of the proceedings:

Mr A Ross (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr S Douglas
Mr Tom Elliott
Mr Paul Frew
Mr C Hazzard
Mr Seán Lynch
Mr Patsy McGlone
Mr Edwin Poots


Mr Colin Stutt, Review of Access to Justice

Access to Justice Review Part II

The Chairperson (Mr Ross): Colin, I welcome you. Apologies for keeping you waiting, probably for longer than you anticipated.

Mr Colin Stutt (Review of Access to Justice): No problem. It was interesting.

The Chairperson (Mr Ross): It is great to have you here. If you want to make some opening comments, I will open it up to questions afterwards.

Mr Stutt: Thank you very much, Mr Chairman. First, I am grateful to the Committee for this opportunity to talk about the access to justice review and to hear your views. This hearing is timely. I am moving towards the latter stages of the review, and I hope to complete my report in the next few weeks so that, all being well, it will be published over the summer. Some ideas are forming, but nothing is decided or set in stone, so I am still in listening mode, and I hope that today is an opportunity for the Committee to raise issues or make suggestions. I felt, at the start of the process, that I should offer prizes for the best suggestions for improving access to justice in Northern Ireland, saving money for the legal aid scheme or doing both, if that is at all possible.

The Chairperson (Mr Ross): What are the prizes? [Laughter.]

Mr Stutt: In liquid form, I should think. [Laughter.]

The Committee will know that there is still a lot of controversy about legal aid and the latest proposals on reform of remuneration and scope, so it is an opportune time to have this independent review, to take a pragmatic and strategic look at the legal aid scheme and the justice system within which it operates and to say, "Where does the money go? What parts of the service are essential, and what are the priorities in the cases that we fund?".

It should not look at it in a vacuum but should, first of all, take into account all the work of the first access to justice review and all the work that my predecessor Jim Daniell did. I am still in close touch with Jim. He is going through treatment at the moment, but he is still very much involved in helping me in the project. It should also look at other jurisdictions. Many people have looked at the review and thought, "Oh well, are we just all going exactly the same way as England and Wales" and, "Is the legal aid scheme going to be reduced to a minimum like that?". That is not my intention at all. I do think that there is a lot to learn from other jurisdictions, although often it is learning what not to do rather than trying to follow the line that they have taken. What I hope will come out are proposals that will lead us to a much more sustainable but well-prioritised and effective legal aid scheme for the longer term.

I have given you a short note about some of the themes emerging. There are five topics that I flagged up on the second page. I am happy to expand on those or to explain my thinking on them, but I am in your hands as to whether it would be the best use of time. If the Committee would like to set the agenda and say which areas it would like to cover, I will do my best. I am certainly listening, so I am very happy to do it whichever way would suit.

The Chairperson (Mr Ross): I think that we will move on to questions, and, at the end, if there are any issues that have not been raised in questions that you feel it would be appropriate to raise with us, we will provide you with the opportunity to do that.

Mr Stutt: Certainly, yes.

The Chairperson (Mr Ross): I will kick off. You made the point about budgeting constraints and how things will get tighter in future. It should be an impetus to change and a springboard for us to do that. You talked about moving away from the adversarial system that we have, which we know makes ours a costlier legal aid system than in Europe. It is quite a radical suggestion. Are you saying that, in Northern Ireland, we could move towards a more European system of court cases? Is that for all court cases or just some?

Mr Stutt: The first thing to say is that, where in my report I look at detailed legal aid issues, those are things that I can make specific recommendations about, and if the Minister wants to proceed with any of them they can be introduced with further consultation in a relatively short time. When I talk about wider access to justice issues and issues with how the courts operate, it is not the job of my report to give a blueprint for exactly what the courts must look like. It is my job to flag up issues and cost drivers that could, if the Minister wants, be taken forward through other working parties and or forums. In terms of the court process, it is the start of a process.

It is certainly an important theme to ask whether the adversarial process sometimes generates unnecessary costs and whether we are too wedded to it. I am not suggesting that we immediately say, "Let's have a continental system where the courts are entirely inquisitorial". Even if that were desirable, which is debatable, it could not be done in a short time.

However, I think that, when one looks at things such as the listing process and the way in which cases are listed — lawyers, victims, witnesses and so on come in at the start of the day and then wait around all day — we have to ask questions about whether there are better ways of organising the business of the court. From our observations of the court, like our experience back in England and Wales, so many court hearings — this is across the board, in criminal, family and civil cases — are ineffective. For so many hearings, you think that surely that could have been dealt with in an email exchange between the parties. Therefore, what I will be encouraging is not a revolution to change completely the world overnight but an evolutionary way of trying to move away from the pure adversarial model, where only advocacy in court can progress a case, to a more mixed and balanced way of doing things. I find that there is a lot of sympathy for that in the judiciary, and a lot of initiatives are already moving in that direction, so I do not think that there will be a revolution overnight.

The Chairperson (Mr Ross): One of the things that the Committee is interested in is innovative approaches to justice. We currently run a series of innovation seminars looking at justice issues. The digitisation of courts is something that I am quite interested in, and we might go to the Netherlands to look at what is being done there. Canada does something similar. Is that something that you have given any consideration to?

Mr Stutt: Yes. I will be flagging up some of those interesting initiatives. The Civil Justice Council of England and Wales has proposed electronic courts, and Professor Susskind did an interesting study on that. It would be a very different way of doing business. There is also — I have never quite known how to pronounce it — the Dutch system of online dispute resolution, which seems to be the most advanced in the world.

Those are very interesting areas to look at. I do not think that I will be making any recommendations that say that this is the future and that we can dispense with the existing system. It may be that we can take evolutionary steps or introduce pilot schemes to develop such systems for particular areas of law in Northern Ireland.

The Chairperson (Mr Ross): It is always good to look globally. However, if we look locally within the British Isles — at the Irish Republic and around England, Scotland and Wales — are there any pilots being operated there that you think would be useful for us to follow or incorporate in Northern Ireland?

Mr Stutt: Particularly on digital working?

Mr Stutt: There have been so many reports and reviews, if you take all the jurisdictions together, that it is hard to single out individual ones. However, I have been interested in types of cases in which things are done very differently between jurisdictions. I ask myself whether there is something to learn. For example, in Scotland, the way in which public law children cases are dealt with is entirely different. It is a non-court-based approach, using inquisitorial panels. Again, it would be a major project to change the system here to do that. However, I think that, when there is something in another jurisdiction that is radically different, it is worth asking whether there are lessons to be learned. What would be the pros and cons of having that here? I would be asking whether it is an area that we want to look at further and get together a team to look at the detail. I have just tried to pick and choose as many pieces as I can.

Mr McCartney: On point 4 in your briefing document, can you give us some insight into the impact of conditional fees in other jurisdictions?

Mr Stutt: Certainly. It is one of the most important issues here. What surprised me a little is that there has been debate in Northern Ireland for many years, as you all know, about the future of legal aid for money damages cases. The question of whether conditional fees would be an answer seems to be often looked at through this prism: shall we introduce conditional fees as a way of justifying the removal of money damages cases from legal aid? I think that it is a much broader question, which is: to what extent might conditional fees improve access to justice? One of the questions that I have asked practitioners, in a whole series of meetings, is this: if you have a person who has, say, a clinical negligence case that seems to be meritorious but, like many of these cases, is difficult, as it depends on expert evidence, and the person is not financially eligible for legal aid, what are the funding mechanisms available to bring that case? So far, I have not really had a satisfactory response. Lots of personal injury (PI) cases proceed without needing legal aid, and that is fine, but, as well as the debate about legal aid and PI claims and how they are currently brought, I am concerned about how we deal with people who are outside the legal aid scheme and need access to justice just as much as the sandwich class in the middle. That is where I think that conditional fees can have a role.

In a sense, we in this jurisdiction are lucky to be able to look at other jurisdictions. Ireland and Scotland both have forms of conditional fee, but England in particular has tried different models of conditional fees, sometimes with awful results. I cannot imagine that anybody would seriously want to propose that conditional fees be introduced in Northern Ireland following the model that applied under the Access to Justice Act 1999 in England. All the extra liabilities and recoverabilities meant that the cost of cases could become doubled or trebled, and the whole scheme got out of control. We can see what went horribly wrong there, but the horror stories that come out of that model should not close off the possibility of seeing whether you can define a conditional fee arrangement that would work in Northern Ireland and enhance access to justice. I am not just interested in saving costs; I want to look at the broader access.

Mr McCartney: How does that work? Is it a no win, no fee scenario, or is it broader than that?

Mr Stutt: Yes, "conditional fee" really means "no win, no fee". One of the peculiarities is that, if you look at the majority of personal injury cases in Northern Ireland, even though conditional fees as a model have not been brought in and are not a recognised form of funding, solicitors will say, "If I lose the case, I will not pursue my poor old client for costs, so I will just generously waive my costs". A great deal of personal injury litigation in this jurisdiction operates under conditional fees in practice but is perhaps not recognised in that legal form. To some extent, we would be recognising that, giving it a clearer legal framework and making sure to build in safeguards so that clients do not lose out as a result of the way in which case law is structured.

Mr McCartney: What has been the response to date from the practitioners and other elements of the judicial system? Do they view conditional fees as something that could be brought in here?

Mr Stutt: There is a mixed response. Generally the Bar is unenthusiastic about conditional fees and has a range of concerns about practical and principled issues. The Law Society sees more of both sides of the argument. There is quite a range of views, and because the question has been tied up with the future of legal aid for damages cases, there has been a reluctance to support private funding alternatives on behalf of lawyers who are very keen for the scope of legal aid not to be reduced. That has coloured the responses.

Mr Elliott: Thanks, Colin. Raymond asked about point 4 in your list of emerging themes. I want to ask about point 1, which is an issue that I have been battering the drum about for some years now: improving efficiencies throughout the justice system. Are you suggesting an overall review so that you do not just continue to cut one section piecemeal but instead have an overall review to establish where the efficiencies can be made, with a package being implemented as opposed to individual aspects?

Mr Stutt: That is a difficult issue, because it is always very tempting to say, "There are efficiencies to be found in crime, so let's have a criminal justice review and look at all aspects". We then might find ourselves two years down the road with 112 recommendations and another long period to implement them.

As I said at the start, on justice issues, I am not saying that there are changes to be made straight away, just that there needs to be the start of a process. My instinct is that, rather than suggesting a whole series of fundamental, overarching reviews on a very long timescale, there is so much that we can learn from similar exercises in other jurisdictions, as well as from the other reviews in this jurisdiction. It may be that one can have a slightly more nuts-and-bolts approach from working parties, particularly judge-led working parties. Sometimes, the judiciary have not been as involved in this jurisdiction as they may often have been in some of the major reforms elsewhere. Once you get some principles established, one can have a slightly more focused group look at changing the procedures to improve efficiency. There are ready-made reports. For example, the Leveson report made a whole series of recommendations to do with the efficiency of criminal justice in England and Wales, the majority of which would also be worthy of consideration here. A lot is there already that you can take, without having to reinvent the wheel.

Mr Elliott: Do you think that it is remiss of the Department and the justice system not to have taken more cognisance of those reports and recommendations before now?

Mr Stutt: No, I do not think so. There is only so much that you can do, particularly in a jurisdiction of this size. The first access to justice review, which took place four years ago, made a large number of recommendations, leading to a suite of 38 different reform projects, some of which have proceeded and concluded and others of which have not. One of the lessons from that review, and something that I want to address in my report, is how you marshal priorities and what steps you can take and in what timescales. Given that resources will always be limited, you cannot reform everything fundamentally all at once. Rather, you have got to decide where best to use your resources.

Mr Elliott: Are you talking about prioritisation of issues?

Mr Stutt: Regarding implementation, the Department of Justice particularly and the other Departments affected will need to think about what are the most important issues for them.

Mr Elliott: That does not form part of your recommendations, does it?

Mr Stutt: I will make suggestions. Nothing that I say is binding on anyone, but I will make suggestions on how to prioritise. Whether any of my recommendations are adopted is not under my control.

Mr Elliott: OK. There will be recommendations, as opposed to just suggestions. There is quite a difference.

Mr Stutt: Yes, there will be recommendations.

Mr McGlone: Thank you for your report. I have a couple of issues to raise. The first is on identifying through the review that publicly funded advice and representation should be provided to meet human rights obligations and safeguard the interests of vulnerable people, as well as to meet the wider public interest. We have just initiated — Chair, you are chairing it — an Ad Hoc Committee on the Mental Capacity Bill, and we are trying to work our way through the details. It is an important body of work. In it, for example, there is an appeal mechanism that will allow people who, it has been determined, are incapacitated to seek leave for an appeal. Now, even if they are not so severely incapacitated so as to have powers removed from them and have others acting on their behalf, they may well not be able to represent themselves. Is that the type of situation in which you envisage a continuing role for legal aid?

Secondly, I deal with quite a bit of social security appeal tribunal work. Not all of them by any means, but many cases do wind up with the Social Security Commissioners, and you will know the level of knowledge and representation required for that. Their decisions can develop or form case law for the interpretation of social security statutes for different benefits. Do you envisage there being a key role there for legal aid? If we are protecting the most vulnerable, you probably do not get any more vulnerable than a person who is so severely incapacitated through mental health problems as to be taken down that route. There are then the implications for the developing interpretation of social security legislation.

Those are two areas that readily spring to mind from my own experience, limited though it may be to date, of the Mental Capacity Bill.

Mr Stutt: The short answer to those questions is yes. Looking first at the Mental Capacity Bill, even in England and Wales, where the scope of legal aid has been very severely restricted, I can say that it has remained available for mental health and mental capacity cases. I do not see any reason for taking a different approach here.

Moreover, one of the themes of this review has been that, whereas in the past people looked at legal aid as categories — say, personal injury or housing law — we now look more at the clients themselves and ask the question, "What about children and vulnerable adults?" That should certainly feature in how any future scheme is structured, although it is easier to say that than it is come up with workable rules.

Understanding the needs of the client is an important part. If you look at article 6 case law and the principles of access to justice, you will see that the circumstances and capabilities of the client is one of the most important factors in deciding when support is needed.

On tribunal cases, I think that everybody accepts that the idea that all tribunals are straightforward, simple and easy to manage without help is not entirely true. There are many important and complex tribunal cases. There are also a lot of other sources of help out there apart from legal aid. Belfast City Council has an advocacy scheme, primarily for social security tribunals but also for some employment tribunals, for which it provides advocates.

Mr McGlone: I should clarify, Mr Stutt, that I was even thinking of the next level, where it goes to the commissioners on a point of interpretation of law. Not in all cases, and far from it, as the ones that go to that level are exceptional, but that is often where people can get lost unless they have a good and detailed grasp of the relevant points of law to raise and the circumstances in which they can seek leave or get leave to take the case to the Social Security Commissioners. It can be quite complex. Your average person just would not know how to do that and, as a result, could be missing out on entitlement. As a consequence of the Social Security Commissioners' decision, the interpretation of the law could benefit others. It is at that level especially where it is very important and where, without it, people would really be lost.

Mr Stutt: I will certainly take that away. In the financial circumstances that the scheme is in, it is obviously going to be difficult to say that there are areas in which legal aid should now be expanded, where it was not before. However, that should not close off the possibility of having more targeted initiatives. It may be that, in the future, the Legal Services Agency could make more use of its grant-making powers. Under its new framework, the Legal Services Agency has fairly wide powers. With some of any moneys that are saved from reducing services in some areas, you could perhaps have the power to make grants for targeted initiatives, such as particular tribunals that are not currently supported.

Mr McGlone: I will just explain that those cases usually go to court. In fact, any of the ones that I have heard about have been in court, and the Department is usually legally represented there. You can immediately understand how someone who is just trying to get by on benefits may well be at a disadvantage.

Mr Stutt: Very much so, yes.

Mr Lynch: Colin, point 2 deals with alternatives to court. Are you looking at alternatives such as restorative systems or models?

Mr Stutt: In the criminal context or —

Mr Lynch: In the context of a broader criminal justice system.

Mr Stutt: I have been looking at that only briefly, because the first access to justice review said quite a bit about diversionary measures and restorative justice. There have also been a number of reforms in that area, and the Bill that will address those is being considered. I do not go into that area in detail at the moment, but I am certainly open to suggestions of improvements that ought to be made.

Mr Hazzard: Thanks for this. It is very thought-provoking. To what extent will you be looking at the whole debate around independent advocacy versus public defender systems and whether public defender systems create problems when it comes to access to justice?

Mr Stutt: That is one of the questions that were raised in the consultation paper that went out last year. Therefore, it is an area that I am looking at. I have looked at the principles involved, such as whether there are fundamental principles that make it desirable or undesirable. I have looked at how it operates in Scotland, where there is a big public defender service, and in England, where there is a smaller one. I have also looked at this practically: are public defenders a solution to a problem that does not exist here or something that is needed? It is one of the topics on which I will try to weigh up the issues.

Mr Hazzard: Is it fair to suggest that there are access to justice issues with public defender systems? They probably vary from place to place.

Mr Stutt: From my knowledge of the public defender system in England and Wales, and, to a certain extent, Scotland, I am not aware of there being real problems on a matter of principle with the way in which the service is operated. If you talk to public defenders, it just like talking to any lawyer. They are passionate about getting the best results for their clients. I do not think that the fact that they are paid by a salary, rather than paid by claiming case by case, makes a lot of difference. Lawyers are professional and want to do the best for their clients. At the moment, I am not persuaded that there is a fundamental issue, but that does not mean that there is a positive case to be made for doing it either. That is something to weigh up.

The Chairperson (Mr Ross): Have you done any work on court provision, which is obviously a pertinent issue in Northern Ireland at the moment? I mean not just on the number of courts that we should have but on whether access to justice would be improved if those courts had better facilities, were more modern and offered a more pleasant experience for people?

Mr Stutt: I have to say that I have not really looked at that area. I know that there is a lot of controversy around closures. Partly just for practical reasons, I have not —

The Chairperson (Mr Ross): It is probably wise not to go into that.

Mr Stutt: Yes. I do hope that some of things that one says about listing and the way in which the courts do business will lead to benefits for users. Hundreds of cases are being listed at once. It is a customer service issue really. I hope that there are things coming out of that that will make the experience better for clients. Regarding how many courts you need, I am afraid that that is not an area that I have looked into.

The Chairperson (Mr Ross): Nobody else has indicated to ask questions. Are there any other issues that you want to bring to the attention of the Committee?

Mr Stutt: No. As I say, by all means, if anybody comes up with other ideas, get in touch in the next few weeks. I hope that it will be a useful and thought-provoking report. It will be the start of a process. There will be consultation on anything that goes forward. I am happy to return another time, once you have seen the report, to assist the Committee in any way that I can.

The Chairperson (Mr Ross): That would be useful. Thank you very much. We appreciate you giving us your time.

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