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Law Society NI's Arleen Elliott: 'There's been a lot of hysteria about the spend on legal aid'

Adrian Rutherford talks to Arleen Elliott, president of the Law Society NI, about legal aid, the issue of justice for all, and whether the legal profession is too male-dominated.

Published 26/10/2015

Arleen Elliott, president of the Law Society NI
Arleen Elliott, president of the Law Society NI

Q. Let's start with an issue in the headlines recently. The Law Society has received a lot of criticism over its initial failure to report allegations linked to the Nama deal to police. What is your response?

A. I can't speak in respect of that specific incident but, when any regulatory matter comes before the society, it is investigated thoroughly to ensure the protection of the public.

The society has very strong reporting obligations.

We are, under law, obliged to comply with those obligations.

Q. Did it happen in this case?

A. I am satisfied that we have complied with our legal obligations.

I cannot speak more specifically than that, because under the Proceeds of Crime Act 2002 it is a tipping-off offence if you state whether or not you have reported.

It may seem odd, it is indeed odd, but it is also the law.

Q. Are you satisfied the society acted properly throughout?

A. Absolutely. It is difficult to comment and give details, but our investigation is ongoing and there is a National Crime Agency investigation ongoing too.

With the passage of time all will become public in due course.

It is extremely frustrating, but when you're carrying out a regulatory function you cannot pick and choose your principles.

In any instance when we carry out a regulatory function we are not in a position to comment on the detail of it.

Simply because this case has had a high public profile doesn't mean we can resile from that.

Q. On a more general point, what does the Law Society actually do?

A. The Law Society primarily regulates solicitors and that is our function under the Solicitors (Northern Ireland) Order 1976.

That is a very onerous task - to ensure that our solicitors meet ethical standards and client monies are never at risk.

For example, before 1976 there was no onus on any solicitor to have insurance, so there were incidents of client money going astray.

The implementation of the Solicitors Order meant that the interests of the public could be safeguarded and it helped to ensure we were considered a profession of people who were responsible and trustworthy.

We have 2,606 members and we represent solicitors across Northern Ireland.

In comparison to other societies we are quite small. In England and Wales there are about 130,000 solicitors. In Scotland there are around 12,000.

Q. What are some of the big issues which the Law Society is involved in?

A. We take a public position, hopefully in an informative fashion, which provides some sort of wisdom on changes in legislation and so on.

For example, the Mental Capacity Bill which is currently going through Stormont.

There are also concerns over legal aid, for a number of reasons.

When justice powers were devolved in 2010 the budget was set at about £85m in the knowledge that it would exceed that, and it has done over the last number of years.

But it has actually been largely static in terms of overall spend.

There has been a great deal of hysteria in respect of the level of the legal aid spend.

I suppose because of the budgets that Government may operate, it is perhaps one of the few budgets where funds go to the private sector.

Therefore, it is in many cases much easier to cut.

The legal aid fund was established in the 1960s and it was done in order to provide access to justice and enfranchise people so that those who were economically deprived could come to a solicitor, get advice and, if necessary, access the courts.

That was seen as something for the good of the public.

Since the recent economic reductions there is less willingness by Government to spend on a fund which enfranchises those who are financially deprived, and a fund whereby people who wish to challenge government may do so.

The Government rarely likes to be challenged.

So it is an issue that needs some very unemotional, careful, methodical consideration about the public policies which lie behind legal aid.

Q. You would argue it is a force for good?

A. Yes, I would, and I don't say that in a blind fashion. 

Solicitors are quite progressive people and we recognise that there may be more efficient ways to deliver justice.

We have always argued that the way to deliver efficiencies is to fundamentally look at how justice is delivered across the board, rather than just taking a scalpel to a legal aid fund which only impacts on the poor and deprived.

It doesn't actually make any fundamental changes which may be needed.

We were very pleased when the Lord Chief Justice announced at the beginning of the legal year the establishment of a civil and family justice review, which will be chaired by Lord Justice Gillen.

That review has commenced and it will take about two years. It will look fundamentally at how and in what way justice can be delivered in a better, fairer and more efficient way.

Q. One of the big issues in terms of legal aid is the budget itself. How much is it over budget?

A. It was established at £85m and, with the budgetary issues, it was to be reduced to £75m and then again to £65m.

The problem is that the spend had already occurred.

This year there is an anticipated spend of about £101m, and that has roughly been the same as the last number of years.

The problem with implementing cuts is that they always take a certain amount of time to come through the system.

The period between the granting of a legal aid certificate to the completion of a case could be a number of years.

Q. So, effectively it means we have breached the legal aid budget by around £25m?

A. The fund has been reduced to a baseline of about £65m and there were difficulties in implementing a cut of that nature to a fund where demand has remained constant at around £100m and legal aid certificates were continuing to be granted in line with need.

It's different if you are budgeting for costs within a department.

Q. Who is to blame? Is it the Law Society for overshooting the budget, or the Department of Justice for setting an unrealistic budget?

A. The budget was set in 2010, it wasn't right in 2010 and it has never been corrected since.

It has essentially been portrayed as a continuous overspend since then, even though the demand-led expenditure has remained largely static.

So if the department is serious in looking at legal aid it makes sense to get the budget right in the first instance and then look at it in a logical way.

The Legal Services Commission had been an independent body which had operated the budget.

That commission has now changed to the Legal Services Agency and is under the control of the Department of Justice.

So spending on the legal aid budget is now effectively controlled by the department, albeit it might argue it is an independent agency within the department.

Q. Each year a list of solicitors receiving most from legal aid is released. There are Belfast firms on that list earning £1m-plus. You are talking serious money there, don't you agree?

A. To start with, firms within the city are likely to have a larger volume of legal aid work.

Those firms which do a higher volume of work employ a greater number of people and will have the biggest draw on the legal fund - it is as simple as that.

To say a certain solicitor earns X amount of money isn't quite the case.

It is a firm of solicitors which has earned that level, and out of that will come overheads, tax and so on.

It is not a simple case of X amount of money going into the pocket of one individual.

Q. There is a lot of annoyance among solicitors faced with cuts to legal aid. Do you understand that?

A. It is understandable because the cuts to the legal aid budget will largely impact on small businesses in private practice.

Those small businesses will have their overheads set around anticipated earnings, and so when you have the government saying it will cut this and cut that, it produces a high level of uncertainty.

There is presently a judicial review ongoing, which we commenced jointly with the Bar Council, in respect of further cuts to Crown Court fees.

I can't comment much on that now, but we will see what happens.

Q. You have talked about the impact of cuts on solicitors, but what about the public?

A. If a solicitor or a firm cannot make work which would receive legal aid funding pay, then that firm has to make some very hard decisions about how its practice can continue to operate and secondly whether it can continue to carry out legal aided work.

Ultimately it will be a business decision and if you have a scenario where legal aid does not pay, then firms will stop doing it.

That would have a huge impact on people's ability to access justice and would essentially disenfranchise people from getting advice or using the courts.

The last thing that any of us want to see is the legal profession and judicial system becoming something that only the wealthy and privileged can access.

As it is, even though we have a legal aid system, there are still many people who are middle-bracket earners who would not have the means to become involved in very costly legal proceedings. They simply cannot afford it.

Q. Potentially this could involve very important matters - family issues and so on?

A. It would have a massive impact on family matters, which is a big part of solicitors' work.

You have issues surrounding children, separation, divorce and so on.

It would be a huge, huge step back if cuts were implemented that meant that children were put at risk.

Q. Could children really be at risk?

A. It is feasible if you have a scenario where the cuts are such that you have firms that simply cannot, for those rates, carry out their job to a high professional standard.

Firms will have to make a very hard decision as to whether they would continue to do the work at all.

Over the last number of years we have all seen the very serious stories which have emerged, where children have effectively been ignored or not listened to. 

All of that has come out many years later and nobody would want to live in a world now where things like that could happen again.

Q. We have seen strikes before. Are more strikes possible?

A. At the moment some members of the criminal bar and some solicitors firms are not providing services in the Crown Court.

We will see how things continue. It is hard to predict how this matter will develop.

Our training as lawyers makes it very hard for us to not represent people in criminal cases.

Q. We've seen cases where solicitors have come off the case - effectively they walk out. Some might see that as quite selfish.

A. I wouldn't say walked out. I think the vast majority of solicitors are continuing to provide their services.

There are some that have made a business decision not to continue to provide services in the Crown Court. That is entirely a matter for them.

Q. Every department at Stormont has been set a budget. Everyone has to make cuts. Why should solicitors and the legal aid budget be any different?

A. Again, it is difficult to discuss because the judicial review is ongoing.

However, various issues, such as ensuring proper financing of the criminal legal budget, will be considered by the courts.

Q Recently this newspaper reported on the case of Barry McCarney, a convicted child killer who received almost £500,000 of public money in legal aid for his defence, despite not giving evidence. Can that be justified?

A. I can't comment on that particular case, but all of us uphold the principle that you are innocent until proven guilty and that is regardless of the person or the crime they are accused of.

If defendants are not represented across the board it would actually break down the integrity of the system, resulting in unsafe judgments and public mistrust about judgments delivered by a court.

You simply could not have it.

There had been a right to silence, but that was changed a number of years ago so that adverse inferences could be made from that silence.

If a defendant does not give evidence the jury can take that into account, and invariably does.

Q. The legal profession, particularly senior court judges, has been criticised for being too male. Have we enough women in senior positions?

A. I addressed a group of trainee solicitors recently and, out of 104 present 80 were female, just 24 were men.

In the Republic of Ireland this year they have moved to being a majority female profession - I think they are the first in the world to do so, but I suspect most others are heading that way.

Certainly, there have been increasing numbers of women coming into the profession here.

In the upper echelons there are naturally more men, but it takes time and it will change.

There have been recent welcome developments. On Friday past there were two appointments of women to the High Court bench.

A further woman was appointed to the County Court bench some weeks ago.

I don't think you should place too much emphasis on statistics.

It is about getting the best possible people - those with ability and integrity.

Whether they happen to be a man or a woman shouldn't really matter.

Q. Have you ever felt that your gender has counted against you?

A. It's not something I have thought about.

My mother was a solicitor and, when she qualified in 1976, she would have been one of very few women. It certainly never held her back.

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