Opinion

Newton Emerson: Whatever happened to legal reform?

Newton Emerson

Newton Emerson

Newton Emerson writes a twice-weekly column for The Irish News and is a regular commentator on current affairs on radio and television.

Whatever happened to legal reform?

In 2010, with policing and justice finally devolved, Alliance justice minister David Ford dropped a bombshell on the legal profession. He proposed channelling the £100 million legal aid budget away from solicitors and barristers towards community-based ‘legal clinics’, a model that operates in various forms around the world.

Organisations such as the Citizens Advice Bureau would have been contracted to provide expertise and mediation, with the aim of preventing many disputes reaching court. This would reduce delays in the criminal justice system while bringing the legal aid budget under control – it had doubled in five years.

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Ford’s idea caused hilarious horror among m’learned friends. When solicitors and barristers went on strike the following year over cuts to legal aid, dropping the clinics proposal was part of an understanding with the Courts Service to get everyone back to work.

The Courts Service is a completely autonomous body, as judicial independence is sacrosanct. A justice minister might offer suggestions but implementing reform usually means striking a deal with Northern Ireland’s top judge, the Lord Chief Justice.

Although the legal aid budget was eventually brought under control, court delays have worsened significantly. Even the simplest cases routinely take two years from charge to verdict. Average times are double those in England and Wales and the overall backlog of cases would take six years to clear at present rates. Barristers are planning another strike and the Law Society is warning of “legal aid deserts” as solicitors go out of business. The existing model is broken.

Legal clinics were a radical idea but more straightforward reforms promise enormous improvement.

Almost half of all court prosecutions in Northern Ireland are for traffic offences, nine in 10 of which are uncontested or involve a guilty plea. This means 40 per cent of the total caseload could be dealt with by a routine administrative procedure.

Experiments to do just that begin in England in 2013, as a joint project between the judiciary, the police and the Ministry of Justice. This was considered a success and soon led to the creation of a centralised ‘traffic court’ in each police area throughout England and Wales.

Setting up a similar court here was a key recommendation in a 2016 report by Criminal Justice Inspection Northern Ireland (CJINI), the independent oversight body for all parts of the criminal justice system except the courts (nobody is allowed to judge judges.)

In 2020, a follow-up report by CJINI complained nothing had been done. There has been no mention of it since.

Reforming certain laws could be just as effective as rearranging certain institutions.

Another of Ford’s proposals as justice minister was to make non-payment of the television licence a civil rather than a criminal offence. This would cut the caseload in district courts by 10 per cent, although the saving in workload would be less, as these cases are generally simple.

As justice minister, Alliance's David Ford suggested radical changes to the legal aid process
As justice minister, Alliance's David Ford suggested radical changes to the legal aid process As justice minister, Alliance's David Ford suggested radical changes to the legal aid process

Because broadcasting is not devolved, Ford had to ask London. The government said no as it believed decriminalising non-payment would kill the BBC.

Would it though? Almost every domestic bill is a civil matter and almost every household pays its bills.

The courts could also take one-off action to clear their backlog by working extra hours, as happened after the pandemic and the 2011 London riots. This could be seen as an equivalent of the waiting list initiatives Stormont funds for the health service.

Comparing Northern Ireland’s crises in health and justice is revealing. If there were a ‘Bengoa Report’ for reform of the criminal justice system, a cynic might say Stormont would fail to deliver it.

On the other hand, the autonomy of the Courts Service, the PSNI and the Public Prosecution Service could bypass the Stormont deadlocks and parish pump politics that have obstructed health reform.

Most people will never deal directly with the criminal justice system, so its problems seem remote. However, the consequences still impact everyone. Once a perception of de facto impunity for even petty crime takes hold, a sense of lawlessness can quickly escalate.

Our entire political system spent 12 years arguing to have justice devolved. We might occasionally take a moment to consider how it is going.