Role of the voluntary sector

Invaluable partners

Below is an extract from a talk by Sir Declan Morgan, Lord Chief Justice of Northern Ireland, at the Advice Services Alliance Conference on Civil Justice and Legal Aid, on how the legal profession and the voluntary sector can work together for the benefit of civil society. The full speech is on the Law Centre’s website, www.lawcentreni.org.

Lawyers and civic engagement

There is a perception that the legal profession and voluntary sector occupy distinct and separate worlds. This is no longer the case. Sophisticated third sector organisations offer a challenging and professional career path to many people, including law graduates.

Lawyers and judges also have an important role to play in their communities, whether in schools, community groups, churches or other voluntary organisations. We are part of the community and there is a strong strand of social responsibility in the legal profession in Northern Ireland of which I am very proud.

Challenging times

The Legal Services Commission and NI Court Service find themselves in the invidious position of trying to make legal aid funding stretch further without any reduction in the quality of advice provided.

The judiciary cannot pass comment on government policy or seek to influence it. I will limit myself, therefore, to saying that this is a conversation between the Commission, civil servants, the legal profession and other providers of advice and support which will require empathy, patience, flexibility and imagination on all sides. It must take place on the basis of a clear recognition of the high pro-fessionalism and the importance to the community of the services by lawyers and advice workers alike under the legal aid scheme. The needs of those members of the public seeking to vindicate their rights in the civil justice system must also be considered alongside the strain that any significant increase in the number of unrepresented litigants will place on the courts.

Sectoral reform

There is also ‘normal reform’, the cycle of information gathering, policy development and review by government which affects every sector. The legal profession has been the subject of a report, published in December 2006, by the Northern Ireland Legal Services Review Group, chaired by Sir George Bain. The outcome was very measured. It dealt with oversight and quality control of both the Bar and the solicitors’ profession, and with competition and development of the profession. It recognised that conditions are different in Northern Ireland. It recognised that multi-disciplinary practices, law firms owned by third parties and ‘chambers’ of barristers are all less well suited to this jurisdiction. Legislation to give effect to the proposals is awaited.

Other areas of civil justice are also subject to review and reform at present. Some are major, like the programme of tribunal reform or the Law Commission’s Land Law Reform programme. Others are less apparently significant, like the recent introduction by the judiciary of pre-action protocols in personal injury cases and in mortgage repossession cases. A minor procedural reform, properly targeted, can often have a disproportionate beneficial influence on problems in the system. There is a lot to be said for the approach of not being caught in the enormity of a major issue, but rather to break it down into bite size pieces and to tackle it in a systematic way.

Examples of good practice

I would like to pay tribute to a few of the imaginative, well-focussed schemes in which the voluntary sector and the legal profession work together energetically to provide legal services. I recognise this list is not an exhaustive one.

Housing Rights Service (HRS) provides in-court advice to people facing repossession of their homes. The initiative came from HRS, who realised that many people facing possession proceedings become ‘frozen’ and do not engage with the process; leaving the court little option but to make the order. Yet, the HRS specialist advisers knew that in many cases an arrangement could be reached, which would allow the arrears to be paid off. They could also ensure that people were claiming all the benefits to which they were entitled.

HRS approached NI Court Service, who gladly provided rooms near the court where repossession cases are heard for an adviser to use. The experience of the Masters hearing these cases is that the practical good-sense and legal expertise of the specialist adviser has helped a significant number of debtors through this process, and has saved people’s homes. Even where borrowers do not have these options, HRS is able to advise on the overall timescale of the process which most debtors do not understand, and to help them to plan. With HRS, individuals are quite simply better able to cope. It is a simple idea, and a really good example of the sort of working together that can have a positive impact.

The Law Centre has developed expertise in immigration cases, and in mental health work, where it both represents individuals before courts and tribunals and participates in policy debate. This is an example of the public benefit that the voluntary sector’s involvement in the development of expertise in policy and representation can achieve.

Mediation

Mediation is now offered in many areas of law. I would, however, like to focus on family law, where the themes are particularly clearly cut and where I have had experience in the High Court as a family judge.

Today, few would argue that conciliation and various therapeutic interventions are not appropriate in family cases. The statutes, indeed, require judges to consider the possibility of reconciliation. Court Welfare Officers are a well-known feature of the Family Proceedings Court, and these Trust employees do sterling work in very many cases. The Masters in the High Court also operate a mediation influenced dispute resolution hearing service in ancillary relief cases.

Tailored mediation schemes operate in Lisburn Court, provided by Cloona Contact Centre, and at Newry by Barnardo’s. Both schemes have part-public funding and appear to be well regarded. They are of considerable assistance to the judges working in those areas. The family courts benefit from the use of skills which go beyond those of traditional lawyers.

Working together between those from very different professional backgrounds, with clear but sometimes different professional codes of ethics, can give rise to tensions. One central tenet of mediation is that the process is confidential, in order to build trust between parties. A fundamental principle of the family court is that the court has a non-delegable duty to concern itself with the welfare of the child in any proceedings involving the Children (NI) Order. Where mediation is court-directed, the court must retain a supervisory jurisdiction in relation to children, and this impacts on the extent of confidentiality. Of course this does not mean that we require a record of everything said in mediation. But we do need sufficient detail to enable us to carry out our function. We have had very constructive discussions with mediation providers about this, which have enabled both sides to understand the other’s position, and we have reached (as is appropriate for mediation) a workable agreement.

Conclusion

There are many other initiatives; the excellent work of Victim Support and the NSPCC with witnesses in criminal courts; the referrals of troubled individuals to Relate for relationship counselling by Probation Service or by family courts; the role played in Northern Ireland’s multi-agency forum on domestic violence by voluntary sector service providers; the education and information-provision to at-risk young people in Northern Ireland by clinical law students at universities through the StreetLaw programme.

There are three important principles for future engagement. First, the voluntary advice sector, because of the front line services it provides, is in a position to see problems early and to gather data which can alert the rest of the justice system to difficulties. Second, it is fast and flexible and can offer new ways of working to meet new and unforeseen circumstances, in situations where traditional legal services may be unavailable. Finally, though, none of this will work without good communication between the legal profession, the statutory sector, the courts and the voluntary sector.

The work of the voluntary sector bears out words which Eleanor Roosevelt wrote over half a century ago: ‘Where…do universal human rights begin? In small places, close to home - so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.’