The Legal Services Commission one year on

In November 2004, the Legal Services Commission celebrated its first birthday. In this article, Jeremy Harbison, Legal Services Commissioner and chair of its reform committee, sets out the work of the Commission and, in particular, examines its research programme and how it hopes to work with the voluntary sector in developing legal aid services.

The Access to Justice (NI) Order  2003 created the Legal Services  Commission and set it a number of statutory tasks in delivering legal aid services. One key task is that the Commission is required to inform itself of the need for civil and criminal legal services and the quality of the services currently being provided.

Having undertaken this task, the Commission is required to plan and effectively meet those needs within the resources available. This is a formidable challenge given that the Commission operates within a fixed budget for legal aid services of £58.6 million for 2004/2005 and that criminal legal aid is currently demand led.

Alongside this duty, the Legal Services Agency Northern Ireland has powers to fund the voluntary sector as well as the legal profession in delivering legal aid services. In addition, the Commission is able to fund different ways of resolving legal disputes. For example, the legal aid budget could be used to develop alternative dispute resolution initiatives. In contrast, our predecessor the Law Society’s legal aid department was confined to making payments to solicitors and barristers on a case by case basis to resolve legal dispute through the traditional litigation route. In order to look at these options, it is clear that our first task is to understand the environment we are working in.

It was immediately evident that there is a complete absence of research into legal need in Northern Ireland. As a result, we commissioned Economic Research and Evaluation to produce a literature review on legal need in Northern Ireland.{footnote}Legal Need in Northern Ireland: Literature Review, May 2004, available on the LSC website at www.nilsc.org.uk.{/footnote} The report examined research into legal needs and legal aid produced in England and Wales, Scotland, Australia, New Zealand and Canada. The report concluded that there is no common definition of legal need or how unmet legal need should be measured. Nevertheless, one way forward identified by the report is to undertake a legal needs survey for Northern Ireland similar to that produced in England and Wales and replicated in Scotland.

In England and Wales, a national survey was undertaken of legal problems encountered between January 1998 and August 2001. The survey examined eighteen key areas including employment, housing and homelessness, social security, consumer, relationship breakdown, money and debt, personal injury and mental health legal problems. The findings published in Courses of Action: civil law and social justice in February 2004 showed that over one third of adults experienced a civil law problem and one in five took no action to deal with their problem.{footnote}Courses of Action: civil law and social justice: Pascoe Pleasance, Alexy Buck, Nigel Balmer, Aoife O’Grady, Hazel Genn and Marisol Smith, TSO, £24.00. Also available at www.isrc.org.uk.{/footnote} The research dug deeper and found that legal problems are not randomly distributed across the population with socially excluded groups being particularly vulnerable to civil justice legal difficulties. The research further highlighted that legal problems often occur in clusters so that a relationship breakdown also creates housing and financial problems. The survey goes on to look at strategies adopted by people to resolve legal problems. Disconcertingly, 37 per cent chose to deal with their problems on their own. The rest turned to a wide variety of sources depending on the type of problem encountered. Tellingly, the research highlighted the importance of finding the right type of advice quickly in that referral fatigue set in rapidly, i.e. a person passed from one advice organisation to another often gave up seeking help. A second survey is being undertaken in late 2004. In Scotland, a similar survey found a lower incidence of legal problems occurring.

The Legal Services Commission has commissioned its own survey for use in Northern Ireland. This work should be completed by June 2005. For the first time, we will have data on legal need and where people go to deal with legal problems. In tandem with this initiative, the Commission is supporting a research project looking at Alternative Dispute Resolution and its prevalence in Northern Ireland. The project is being undertaken by the Office of Law Reform.

The research is part of a wider programme of work looking at the reform. Other work includes drawing up an options appraisal for the best way of dealing with money damages and personal injury claims, developing a funding code to decide which cases should receive legal aid, examining the scope for funding new areas of work and developing quality assurance mechanisms.

The Commission sees the voluntary sector as a key player alongside the legal profession, Equality and Human Rights Commissions and other bodies who provide legal advice. Legal aid has an important role to play in tackling social disadvantage and that creates an immediate resonance with the work of Citizens Advice Bureaux and independent advice centres. Our approach to moving forward will be to build on the work already being done in the voluntary sector and to develop partnerships that complement existing initiatives. This is why we are particularly interested in the ten year advice and information strategy currently being developed by the Department for Social Development. It makes immense sense that the Legal Services Commission role in financing legal aid services fits into an overall strategic framework. Moreover, the Commission wishes to map existing legal services covering the advice sector, solicitors practices and other providers. This exercise has never been done and it will help in identifying the provision currently available to assist people with their legal problems.

The research, reform and other work need to be seen against the backdrop of the Fundamental Legal Aid Review (FLAR) being undertaken by the Department for Constitutional Affairs. The terms of reference for this review are to improve the focus of legal aid on delivering the government’s priority objectives for which it is the most effective channel, increasing value for money and containing legal aid costs. The review extends to Northern Ireland where the work will be driven by the Court Service. The timetable for the review is tight with an aim to complete much of the central work by July 2005. The Legal Services Commission is acutely aware of the need to convince the Court Service, Department of Constitutional Affairs and the Treasury that its own proposals for meeting legal need are credible, offer value for money and are making an effective contribution to tackling social exclusion and disadvantage.

The Commission is clear that it will not slavishly follow the path to reform chosen by the Legal Services Commission in England and Wales. We also know that effective reform must be underpinned by good quality research and an understanding of how people currently use legal services. The agenda for change is formidable and time is tight. Nonetheless, these are exciting times for delivery of legally aided services. We look forward to the voluntary sector playing an important part in those changes.