Legal Aid regulation flexibility questioned

1 April 2011

Legal Aid regulation flexibility questioned

Drafting instructions for the proposed Legal Services Act (Quality of Service) Regulations seem to provide little flexibility, unlike the current situation where the Legal Services Agency has a discretion, the New Zealand Law Society believes.

In its submissions on the drafting instructions, the Law Society says the proposed new regulations should allow a discretion for applicants who, due solely to their particular circumstances, do not fit precisely within the criteria but are able to clearly demonstrate their competence in other ways.

“There is no ability to dispense with the requirements in appropriate cases. For example, a person with 10 years’ trial experience who takes some time out of practice for family or other reasons, appears to be treated exactly the same as a person straight out of law school with more limited experience,” the Society’s submission states.

The Law Society says applications should be viewed as a whole, with the Secretary of Justice given an overall discretion to approve applications not meeting the specific requirements set out in the proposed regulations.

Considering other aspects of the proposed regulations, the Society submission notes a number of references in them to “operational policy” and “guidelines” issued by the Ministry of Justice.

While acknowledging that it would not be practical to include the operational policies and guidelines in the regulations themselves, the submission stresses the importance of giving the Society input into their context, in order to give legal aid providers a level of certainty.

“Ideally the regulations should require consultation with the Society and stipulate the minimum standards for consultation,” it says.

“It is important that any practitioner seeking to comply with the proposed regulations can easily and readily see what is required of them. In our view, this is an opportunity for the Ministry of Justice to put together comprehensive regulations that make it clear to practitioners exactly what will be required of them.”

The Law Society points to a high administrative burden on legal aid providers, and says if the ministry wants to attract good legal aid providers, having all the requirements set out in one clear document would alleviate some of the concerns held by providers.