Westminster politicians are playing a dangerous game
Belfast lawyer Christopher Stanley explains why his firm has taken a stand against the legal aid cuts by walking out of major criminal trials. Northern Ireland’s history of conflict means proper funding to maintain the rule of law is vital, he says.
Northern Ireland is a post-conflict society of transitional justice, whether those of us who live and work here wish it or not. As the Belfast/Good Friday Agreement of 1998 noted regarding the introduction of a Bill of Rights for Northern Ireland (delivered but not implemented), it has its own ‘particular circumstances’.
While policing and criminal justice powers have been devolved to the Northern Ireland Assembly at Stormont, the welfare budget remains in Westminster’s hands, and England’s austerity is to be imposed on the North of Ireland. This requires legislative reform and the introduction of legislation to mirror the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) – specifically that transferring legal aid funding powers from an agency independent of the NI Executive to the Legal Services Agency within the Department of Justice – has now been effected through the Legal Aid and Coroners’ Courts Act (Northern Ireland) 2014.
The travails of legal practitioners in England and Wales now weigh upon those of Northern Ireland. The same arguments are being made, including those regarding the conflict of interest when an individual serves suit upon a government agency, and it is another element of that agency which decides whether to fund that suit or not.
Human rights, the state and legal aid
Arguments against legal aid funding cuts highlight the ‘same but different’ nature of the North of Ireland and its ‘particular circumstances’. England and Wales do not have conflict-related litigation, which exists because the British government has failed to confront the legacy of human rights violations accepted by the European Court of Human Rights, meaning victims are forced to litigate against the state to obtain truth, justice and accountability.
‘The security situation affects both rates and types of crime. Punishment beatings as a norm do not take place in Bolton, but they do in the Bogside.’
Nor will Westminster fund initiatives for dealing with the past, and it is now, together with Stormont, confronted with an increasing demand for conflict-related civil and public actions in a society where even the definition of a victim remains a point of contest. A breach of article 2 of the European Convention on Human Rights (ECHR) – the right to life – gives rise to investigatory procedural obligations on a contracting state. These cannot be circumvented by arguments about lack of resources, and do not sit well when the state decides whether resources will be made available at all when a victim demands recourse to law to challenge state failures, including its role in collusion.
That is one side of legal aid in the North of Ireland. The other, and here arguments against legal aid reform are shared by practitioners on both sides of the Irish Sea, is the everyday significance of legal aid as a means of securing access to justice (again engaging the ECHR and EU Charter Rights, and reflecting common law norms), which itself underpins the maintenance of the rule of law in a constitutional democracy.
More complexity, less funding
Following the implementation of budget reforms in May, criminal legal aid fees in NI have been reduced or removed, specifically those relating to work undertaken prior to trial in complex criminal cases in the Crown Courts.
The landscape of crime in the North of Ireland reflects the socio-economic circumstances of a society in transition from conflict to peace, where political violence, whether acts relating to ‘terrorism’ or civil disobedience regarding the symbols of identity (flags, marches, etc), is specific to the jurisdiction and contributes to both criminal defence workloads and the policing and criminal justice budgets. The higher rates of socio-economic disenfranchisement and dispossession as a result of the employment, housing, education, health and welfare situations in the North of Ireland, exacerbated by the security situation, affect both rates and types of crime; for example, punishment beatings as a norm do not take place in Bolton, but they do in the Bogside.
Fighting the cuts
The Northern Ireland Law Society and the Bar Council of Northern Ireland have both raised arguments in opposition to the cuts in legal aid for work undertaken before trial in complex criminal cases. At least one barrister has withdrawn representation with the consent of his client.
On three occasions so far since May 2015, KRW Law has, with its clients’ consent, withdrawn its services before the Crown Courts, with judges largely sympathetic to its position. It is not one KRW wants to take, particularly alone, but it is prepared to continue doing so unless the reforms are reversed.
In the first action, a man facing sexual assault charges was remanded in custody. At that point, Joe McVeigh of KRW told the judge he would not be applying for legal aid to represent his client or to appoint a senior and junior barrister. Instead, he said he would no longer be involved in the case as part of the protest against the new legal aid rules and reduced fees. McVeigh told the court that the new legal aid rules were ‘a cynical and vicious attack’ on criminal defence lawyers by the Department of Justice. He said the latest round of cuts would result in defence teams not being able to properly represent those charged with the most serious crimes. The statement was greeted by applause from other solicitors in the court and widely reported in the media.
Northern Ireland’s Law Society and its Bar Council have now issued a judicial review against the Department of Justice’s decision to force through the legal aid reforms. It is listed for hearing in September. The present industrial action, which is now escalating, is confined to the new Crown Court Remunerations Regulations 2015 under the Legal Aid for Crown Court Proceedings (Costs) (Amendment) Rules (Northern Ireland) 2015 SR No 215, which came into force on 5 May: any case in which our clients facing trial are affected by these regulations will result in KRW coming off the record with the court. We continue to undertake PACE (Police and Criminal Evidence (Northern Ireland) Order 1989 SI No 1341 (NI 12)) work and all other criminal practice areas. The judges before whom we are appearing where we are coming off the record have sensibly adjourned these cases until the judicial review by the profession is heard in the High Court.
‘The North of Ireland has a legacy of lawyering under fire and with courage. The fight against legal aid cuts will continue as long as needed.’
Our action is now being replicated across Northern Ireland and it is important to highlight that this is not just a Belfast issue: these imposed austerity measures affect clients in Omagh and Ormskirk too. In Northern Ireland, a number of barristers are now taking similar measures and a coalition of solicitors is being organised to co-ordinate the industrial action. We have been joined by 14 other firms across the North of Ireland and have had statements of support from others.
The North of Ireland has a legacy of lawyering under fire and with courage. The fight against legal aid cuts in this jurisdiction will continue as long as needed until access to justice is secured and those requiring legal assistance receive it. Otherwise, the threats to the administration of criminal justice in this jurisdiction are severe and the lives of those already in jeopardy, as victims or perpetrators, enter a period of stasis as political stakes are played out between Stormont and Westminster – and eventually at 3.05 am in Musgrave Street police station.