The General Council of the Bar of Northern Ireland and the Council of the Law Society of Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Maguire J |
| Judgment Date | 2015 |
| Neutral Citation | [2015] NIQB 99 |
| Year | 2015 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 13 November 2015 |
1
Neutral Citation No. [2015] NIQB 99
Ref:
MAG9767
( (5)
Judgment: approved by the Court for handing down Delivered:
13/11/2015
(subject to editorial corrections)*
2015/No: 50156/01
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
The General Council of the Bar of Northern Ireland and the Council of the Law
Society of Northern Ireland [2015] NIQB 99
IN THE MATTER OF AN APPLICATION BY THE GENERAL COUNCIL OF THE
BAR OF NORTHERN IRELAND AND THE COUNCIL OF THE LAW SOCIETY
OF NORTHERN IRELAND
and
IN THE MATTER OF THE VALIDITY OF SUBORDINATE LEGISLATION
________
MAGUIRE J
INDEX
Paragraph
Introduction 1-3
Background to the provision of Criminal Legal Aid 4-14
Recent History 15-16
The 2005 Rules 17-23
The 2011 Rules 24-29
The 2015 Rules 30-36
Events leading to the 2005 Rules 37-46
Events leading to the 2011 Rules 47-62
Events leading to the 2015 Rules 63-65
Audit Office Report 66-67
Access to Justice Review 68-73
Criminal Justice Inspection 74
2
Review of the Rules 75-80
The Consultation Paper 81-83
The Criteria 84-91
Options 92-100
The Impact Assessment 101-106
The Bar’s interim response to the Consultation Paper 107-112
Law Society Response 113-124
Bar Response 125-136
Other responses to the Paper 137-138
Follow-up Meetings 139-146
Interim Post Consultation Report 147-148
Next steps 149-160
Post Consultation Report 161-164
Discussions in Justice Committee 165-186
Final Stages 187-195
Grounds of JR 196-199
Judicial Review Principles 200-206
Ground 1 – Ultra Vires 207-208
Time and Skill 209-221
Numbers and Competence 222-230
Cost to Public Funds 231-234
The need to secure value for money 235-241
Assessment (Ground 1) 242-250
First and third grounds of challenge 251-270
Consultation 271-275
Assessment (Ground 2) 276-293
Impact Assessment 294-305
Assessment 306-314
Confiscation Orders 315-325
Assessment 325
A fundamentally flawed assessment 326-345
3
Exceptionality 346-347
Appropriate Relief 348-354
Conclusion 355
Introduction
[1] This application for judicial review has been bought by the General Council of
the Bar of Northern Ireland (hereinafter “the Bar”) and the Council of the Law
Society of Northern Ireland (“LS”). The respondent to the application is the Minister
for Justice (“the Minister” or where the context requires “the Department”). In
essence, the applicants seek an Order of Certiorari from the court quashing a set of
statutory rules which are described as the Legal Aid for Crown Court Proceedings
(Costs) (Amendment) Rules (Northern Ireland) 2015 (“the 2015 Rules”). These came
into force on 5 May 2015. These proceedings were begun on 26 May 2015. Other
forms of relief are sought as well but it is not necessary at this stage to go into them.
The 2015 Rules were made by the Minister. They were subject to negative resolution
procedure in the Assembly. In fact no motion to annul the Rules was brought before
the Assembly. The Rules, as required by the parent legislation, the Legal Aid,
Advice and Assistance (Northern Ireland) Order 1981 (“the 1981 Order”), have been
the subject of statutory consultation with the Lord Chief Justice, the Attorney
General and the Crown Court Rules Committee. The power to make the Rules, as
conferred by the parent Order, is stated in the following terms:
“The Minister may make such rules generally for
carrying this Part into effect and such rules shall in
particular prescribe… (d) the rates or scales of
payment of any fees, costs or other expenses which
are payable under this Part”: see Article 36(3).
“This Part” is a reference to Part III of the 1981 Order which is headed “Free Legal
Aid in Criminal Proceedings”. Article 29 provides for free legal aid in the Crown
Court. Inter alia, this provision stipulates that “any person returned for trial for an
indictable offence … shall be entitled to free legal aid in the preparation and conduct
of his defence at the trial and to have solicitor and counsel assigned to him for that
purpose in such manner as may be prescribed by rules, if a criminal aid certificate is
granted in respect of him”. While these proceedings are not concerned with the
circumstances in which a criminal aid certificate is granted, it will be noted that these
are set out at Article 29(2) of the 1981 Order.
[2] Of great importance to these proceedings are the provisions found in Article
37 of the 1981 Order as it has now been amended by Schedule 4 paragraph 6(3) of
the Access to Justice (Northern Ireland) Order 2003. As amended, Article 37 now
reads:
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