Unlawful Legal Aid Policy - Another Simon Power Train-Wreck

The Court of Appeal yesterday found that the Government's fixed fee legal aid regime was illegal (Criminal Bar Association v Attorney General [2013] NZCA 176 (24 May 2013)). This is yet another Government stuff up. This time in rolling out an unlawful legal aid policy. This fiasco too can be sheeted home to Simon Power. Power got rid of provocation because of one case where the jury properly rejected it; got rid of depositions to speed up trials, but in so doing made the delays longer than ever. Power was also the SOE Minister responsible for Solid Energy as it embarked on a thoroughly reckless and stupid expansion plan. It was  Power who wrote to Solid Energy telling them to borrow big and hand more cash back to the state(1), which has been proven to be disastrous advice.  With this impressive track record he has now moved to bestow the benefits of his "experience" on Westpac Bank. What experience does Power have in banking? It was only a few years ago he was an average staff solicitor in Palmerston North who hardly ever darkened a courtroom. I would have thought with the train-wrecks Power leaves behind after he moves on, that he was more suited to a career in demolition?

When the Legal Services Bill was being debated in the House, opposition MPs raised concerns about the lack of independence in making grants, and how the new scheme would adopt a "one size fits all" approach to legal aid grants regardless of complexity or the vulnerability of the client. The Government assured the House, that this would not be so as the Commissioner could exercise discretion. This was disingenuous. As the Court observed first quoting from the then Minister (Simon Power):

[98] Concerns about the independence of the legal aid system again featured in the committee stage of the consideration of the Legal Services Bill, and in its second and third readings. In moving the third reading the Minister of Justice said:

… Submitters were concerned that the transfer of the legal aid system to the Ministry of Justice may reduce the level of independence in the legal aid system. We thought about this carefully in the policy design, and I am pleased that the committee agreed that the position of the Legal Services Commissioner will guarantee that independence. … 

Power was specifically warned in the House about the lack of independence and the fettering of the decision makers discretion. As the Court noted:

[99] Outlining his party’s continued opposition to the bill on its third reading, Mr Locke MP referred to the importance of preserving:

… the necessary independence that a legal services body requires. Putting in a supposedly independent statutory officer, the Legal Services Commissioner, will not necessarily solve that problem. 

He added: 

The report back from the select committee says: “It is important that while the Commissioner would be accountable to the Secretary for Justice, the Secretary should not be able to interfere in the Commissioner’s performance of his or her independent functions as set out in the bill.” That is all very well, but, as we have found in other areas, when an officer is reporting to someone above them in the hierarchy their responses are a bit conditioned by the responses of the higher-up officer. That issue was raised as part of the debate on the bill that merged Archives New Zealand and the National Library and put them under the Department of Internal Affairs. Even though there is an independent Chief Archivist, the Chief Archivist has to report to the head of the Department of Internal Affairs. A similar situation will constrain the real independence of the Legal Services Commissioner, particularly when monetary matters are involved, as they are with legal services and as they are in the case of the Chief Archivist and the Department of Internal Affairs. Budgets can be restricted and so on, so we do not think there is sufficient independence in the system. 

So how did the independence so carefully thought about by this Minister actually work in reality?

[121] The problem with the current Policy is the combination of a fixed fee for almost every grant of legal aid combined with the lack of any effective room for the Commissioner (or his delegate) to amend the grant, even where the Commissioner considers an amendment is appropriate. We are referring to what Mr Harrison termed in his submissions the “unusually complex and completely inadequate test for an amendment to the grant”. In the absence of at least two of the factors mentioned in the Policy, or a particularly vulnerable complainant, and proof that the fixed fee will be “completely inadequate in reflecting the cost of completing the activity”, the Commissioner has no discretion to move the case out of the fixed fee category. We consider that test sets a threshold so high that it constitutes an unacceptable limit on the exercise by the Commissioner of his discretion. 

[125] In [111] we noted Simon France J’s view that it was “far too early” to use the statistics we have summarised in [110]. While there is some force in the Judge’s view, the fact that only 0.4 per cent of 10,000 cases had been transferred to the complex case category, against the anticipated 4.5 per cent, does suggest that the threshold for transfer is extremely difficult to meet. 

[126] It follows that we accept the appellant’s argument that the Policy is also unlawful in that it unreasonably fetters the Commissioner’s discretions under ss 16, 23 and 28 of the 2011 Act. Accordingly we answer Question 3: ‘Yes, the Fixed Fee Policy unreasonably fetters the Commissioner’s discretion under the 2011 Act’. 

In the time since the fixed fee policy was introduced a number of practitioners will no longer take on legal aid cases - it is just uneconomic, still others have moved on to new careers.  The feeling of many is that the fee regime is designed to slowly drive practitioners from the system. 

Now having been told that the fixed fee regime is illegal what will the Ministry do? Don't expect sweetness and light or even an apology. The Ministry and the Minister will treat this, if past experience is a guide, as merely an obstacle to be got around. The tragedy is that when looking at the system objectively, there is blatantly no independence in decision making. Any competent lawyer  would have seen that from day one.

1 - http://www.scoop.co.nz/stories/PA1303/S00254/questions-and-answers-march-14.htm; and
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10871040