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Legal Aid (Northern Ireland) Order 2005

rose to move, That the draft order laid before the House on 15 November be approved. The noble Lord said: My Lords, the draft Legal Aid (Northern Ireland) Order 2005 amends the existing legal aid legislation in Northern Ireland by taking a power to enable the Lord Chancellor to direct or authorise funding in exceptional cases. This power is required because the legislation governing legal aid in Northern Ireland, pending full implementation of legal aid reform, is a restrictive and inflexible 1981 order which does not have an exceptional grant power. As such, the draft order seeks to ensure that exceptional funding is available in Northern Ireland, as it is in England and Wales, and that the Lord Chancellor can, in appropriate circumstances, exercise powers to compensate for the inflexibility of the 1981 order. Your Lordships may be aware that the Lord Chancellor had previously sought to address this issue by bringing forward a transitional exceptional grant power under the Access to Justice (Northern Ireland) Order 2003. That transitional exceptional grant power worked well, providing important assistance in numerous cases, particularly in relation to inquests. However, as your Lordships may be aware, that transitional power was successfully challenged by way of judicial review by one of the defendants to the Omagh civil action. The defendant successfully challenged the funding provided to the Omagh families. The draft order essentially replicates the exceptional grant provision set out in the now-repealed Section 76 of the Justice (Northern Ireland) Act 2002. Under the order, the Lord Chancellor can direct the Northern Ireland Legal Services Commission to fund categories of cases or, in response to a request from the commission, authorise funding for an individual case which falls outside the scope of the ordinary legal aid scheme. I repeat, this reflects the current position in England and Wales. However, the draft order also enables the Lord Chancellor, in response to a request by the commission, to authorise funding generically or in respect of individual cases which are within the scope of the ordinary legal aid scheme. Your Lordships will note that this particular power is intended to compensate for the inflexibility of the powers currently available under the governing 1981 order. It is a transitional provision, until such time as the full range of powers under the Access to Justice Order becomes available to the commission and the Lord Chancellor. The draft guidance, which I have made available to your Lordships’ House, indicates that this power could be used to compensate for the systemic impediments within the 1981 order or to fund an individual, wholly exceptional case which is technically within the scope of the ordinary legal aid scheme and yet cannot secure funding. The Lord Chancellor would consider exercising this power only if the commission requested funding in a case where there were compelling reasons why it would be inappropriate simply to apply the rigid test set in the 1981 order. Your Lordships may consider that a practical example of the use of this power would be to provide funding to those bringing the Omagh civil action. I cannot enter the realms of speculation, but your Lordships will note that under the terms of the order the issue of funding for the Omagh civil action or any other action is a matter in the first instance for the commission to determine should an application for legal aid be lodged. All I can say on behalf of the Lord Chancellor is that he would consider any request submitted by the commission on the merits of the case and against the general principles set out in the draft guidance. I commend the order to the House. Moved, That the draft order laid before the House on 15 November be approved.—(Lord Rooker.)