Improve the operation of legal aid to prevent abuse and monopolisation
26 October 2021
Upon assumption of office as Chief Secretary for Administration in June this year, I embarked on reviewing and improving the operation and implementation of our legal aid system. This was in response to the discontent of society, in particular the Legislative Council (LegCo), with the abuse, monopolisation and other procedural problems of legal aid. A steering group chaired by me, comprising staff of the Legal Aid Department (LAD) and the Administration Wing, has recently completed the review and proposed a series of enhancement measures.
Having consulted the Legal Aid Services Council on our proposals and obtained its endorsement, the Director of Legal Aid (DLA) and the Director of Administration briefed the LegCo Panel on Administration of Justice and Legal Services at its meeting this afternoon. We received unanimous support from the Panel, which is encouraging indeed.
Formulated to protect the legitimate interests of legally aided persons (APs) while preventing the abuse of legal aid and “monopolisation” of cases by a small number of individuals, the enhancement measures include the following:
- For criminal cases, LAD will directly assign suitable counsel or solicitors to APs (unless in exceptional circumstances where, for example, the nominated lawyer has already represented the AP in a lower court);
- for judicial review (JR) cases, assignment limits will be imposed, viz. three cases for each counsel and five for each solicitor per year;
- the overall civil case assignment limits per year will be lowered from 20 to 15 cases for each counsel (a 25% reduction) and from 35 to 30 cases for each solicitor (a 15% reduction);
- LAD will strengthen case management and monitor the performance of assigned lawyers. A dedicated committee will be chaired by DLA to monitor the administration of assignments to lawyers for JR cases while a mechanism will be set up to strengthen performance management and monitoring of the assigned lawyers through, inter alia, re-assignment of cases to other lawyers, removal of lawyers from the Legal Aid Panel, listing of lawyers on the Record of Unsatisfactory Performance or issuance of advisory letters in case of poor performance; and
- LAD will enhance transparency of its work by releasing more statistics and information so that the public can better understand its operation and actual workings. Some examples of such data are:
- number of successful/refused applications;
- number of refused applications which do not pass the means/merits test;
- total number of solicitors/counsel engaged in legal aid cases;
- legal aid expenditure involved; and
- number of persons whose legal aid applications will not be considered by DLA for up to a period of three years.
The Legal Aid Ordinance provides for APs to nominate their counsel to represent them in civil cases, but this arrangement of nomination does not apply to criminal cases. According to the enhancement measures, LAD will directly assign counsel or solicitors to APs in criminal cases. This is in conformity with Article 35 of the Basic Law which provides for Hong Kong residents’ right to choice of lawyers. First of all, the person concerned may either choose a lawyer to be assigned by LAD or engage a lawyer on his or her own. In assigning a lawyer, LAD will consider the nature of the case as well as the lawyer’s expertise and experience in order to ensure that the AP will have competent legal representation and hence access to a fair trial. Besides, the provision of legal aid involves public funds, the proper use of which must be safeguarded by the Government. In fact, under the Duty Lawyer Service, which has been in operation for years in the Magistrates’ Courts, legal representation is also provided to defendants by assignment using public funds, and defendants may either choose the assigned counsel or hire their own. This long-standing practice is also in conformity with Article 35 of the Basic Law.
In addition to preventing abuse and improving procedures, the enhancement measures also serve to prevent the concentration of cases among a handful of lawyers. For example, of all the JR-related legal aid cases assigned in 2020, 94% was handled by the top 10 assigned solicitors while 62% was handled by the top 10 assigned counsel. In general, JR cases are handled jointly by solicitors and counsel. Reducing the high concentration of cases among a small number of lawyers will prevent monopolisation and eventually be more beneficial to APs.
The Government will implement the measures in full as soon as possible before the end of the year.
