Ministerial Statement on the Establishment of a Public Defender’s Office by Mr K Shanmugam, Minister for Home Affairs and Minister for Law

04 Apr 2022 Posted in Parliamentary speeches and responses

Thank you, Mr. Speaker Sir,

A. INTRODUCTION

1. In 1956, the Legal Aid and Advice Ordinance was passed. It aimed to deliver free civil legal aid to deserving cases. The Ordinance also contained provisions on criminal legal aid. But the latter provisions were not brought into force. That remained the position when we passed the Legal Aid and Advice Act in 1995.

2. In 2013, I gave a speech at the Association of Muslim Lawyers’ Inaugural Lecture. I announced that the Government had decided to directly fund criminal legal aid and we were studying how best to do it. Philosophically, that was a big change. In the end, we decided to do so, through CLAS, the Criminal Legal Aid Scheme, run by the Law Society.

3. In March 2015, I announced that the Government would fund CLAS.

4. For CLAS itself, when we got funding included, some changes were made:

   (1) First: The means test was redefined, enhanced. It allowed more applicants to qualify for criminal legal aid because the funding was supported by the Government, and it directed aid to those who needed it most.

   (2) Second: An honoraria was paid to CLAS lawyers to recognise the contribution of volunteers who take on criminal legal aid cases. However, it has to be said that the honoraria was very nominal.

5. In 2018 and 2019, we started thinking that we could go further in providing aid. And we began reviewing our criminal legal aid model.

6. We engaged the Law Society and Criminal Bar for their views. We asked if they would support an expansion of criminal legal aid coverage. Law Society was in principle supportive, as was the Criminal Bar. But they were concerned about the impact on paid work for lawyers – whether this would take away work from lawyers and whether lawyers’ income will suffer. So they suggested expanding the coverage of offences, instead of increasing the means test coverage. They didn’t want us to cover more people, but they were quite happy to consider whether we could cover more offences.

7. After taking in the feedback, we came to our views.

8. In November 2020, I shared some of our plans. I said that we are not completely satisfied with our current model. I also said that the Government, in principle, prefers the approach of a Public Defender’s Office.

9. But there were a few issues to think about.

   (a) First, we needed to make sure we try and minimise abuse of the system. I gave examples of this from the United Kingdom and Hong Kong, but you will find it in every jurisdiction.

   (b) Second, to manage costs to ensure fiscal sustainability.

   (c) Third, maintain our lawyers’ pro bono spirit.

10. I raised three key questions.

    (1) Should we change the model we have and go for full Government-funded legal aid?

    (2) Should we give up our public-private sector partnership model in delivering criminal legal aid?

    (3) Should we expand CLAS beyond the lowest 25% in terms of household income?

11. These are not easy issues.

B. STUDY OF PRACTICES IN INTERNATIONAL JURISDICTIONS

12. We undertook a study of the different criminal legal aid models in other countries.

    (a) We looked at eleven jurisdictions: The United Kingdom; New Zealand; the two states of New South Wales and Victoria in Australia; the province of Ontario in Canada; Hong Kong SAR; Republic of South Korea; Germany; Japan; and the United States of America, at both the New York state level and the federal level. So, it is not just countries, but also territories.

13. And we looked more closely at six of them, namely: The United Kingdom; New Zealand; the New South Wales and Victoria; Ontario; and Hong Kong.

14. These six jurisdictions share similar common law traditions and philosophies with Singapore.

15. They aim to provide criminal legal aid to the most vulnerable persons.

16. I will now set out our observations.

B1. Delivery of criminal legal aid

17. In nine of the eleven jurisdictions surveyed, a Public Defender Scheme is in place. The exceptions are Germany and Ontario. They adopt what is called a judicare model, where cases are outsourced to the private sector for a fee.

18. Our view is that the Public Defender model has some benefits over the judicare model.

19. The Public Defender’s Scheme allows:

    (a) Development of expertise.

    • Institutional knowledge can be built.
      
    • In the judicare model, assignment of counsel is ad hoc.

    (b) Greater economies of scale.

    • This can help better manage costs.

    (c) Better access to specialists.

    • Our studies showed that in the Public Defender model, where there is a specialised office – a Public Defender’s Office – over time, it is better able to access expert witnesses, medical, forensic analysts, and so on.

20. Let me now consider how Public Defender schemes are organised overseas.

21. Other than Ontario, all the common law jurisdictions we studied adopt a hybrid model.

22. This means that the State hires in-house lawyers as Public Defenders. And also outsources some cases to the private lawyers.

23. This model can strengthen the partnership between the private sector and the Government, and widen the pool of expertise that can be tapped. This is a model that we are considering.

24. A strong partnership between the Government and the Criminal Bar is in my view, quite important.

25. If you look at the state of Victoria, in Australia, for example. The Victorian Bar Association has its own pro bono scheme. They offer advice and representation to persons who cannot obtain legal assistance from any other source. And they complement the public defenders employed by the Victoria Legal Aid.

26. In Singapore, we have had a very strong partnership with the Law Society and the legal fraternity. And they have a very strong pro bono and public spirit. We want to preserve this cooperative relationship.

27. So the Victorian model is one way we can do that. I will come back to this later.

B2. Funding and costs of criminal legal aid

28. Let me now move on to funding. Ten of the eleven jurisdictions we have studied are fully funded by the Government. The only exception is Ontario in Canada. There, the Government co-funds the system with the Law Foundation. The Law Foundation is an organisation set up by the legal fraternity.

29. In any system like this, escalating costs are a major concern when criminal legal aid is fully funded by the State.

30. There are various reasons for the increase in costs. They include:

    (a) The lack of a robust means and merits assessment framework and safeguards as the coverage expands, invariably and inevitably.

    (b) Overbilling by private sector lawyers to whom criminal cases have been outsourced to.

31. I shared an example of escalating costs when I spoke about this in 2020. For example, in Hong Kong, S$217 million was spent on both civil and criminal legal aid in 2016. This was due to continual increases in lawyers’ fees of around 4 to 10% every year. Other jurisdictions also saw similar increases in spending over the last ten years.

32. And after a while, it was no longer sustainable. Some of these countries have then had to impose very sudden, drastic cuts to funding. The UK had to do it.

33. In 1996, Ontario cut its legal budget by 22% to control costs and there were adverse consequences which remain today, including delays in clearing cases.

34. We need to learn from these experiences and try to avoid going there, and then taking the cutbacks and steps to control costs. We have to structure it in a practical, workable way, from the beginning and try and make our criminal legal aid model sustainable.

B3. Other key lessons

35. Let me now touch on some other key lessons that we noted from our study of other jurisdictions.

B3(i). Structure of the Public Defender agencies

36. First, it is important to structure the Public Defender agency carefully.

37. Good governance is important. The agency can be part of the Government. At the same time, the Public Defenders must be able to carry out their professional duties, and defend the recipients of legal aid where the cases are meritorious. Some jurisdictions have been able to do this.

B3(ii). Abuse of systems

38. A second concern is to, as I said earlier, prevent the abuse of the criminal legal aid system.

39. Mr Speaker Sir, with your permission, may I ask the clerk to distribute an Annex to my speech, which I will not go through but will be taken as part of my speech. The Annex contains examples of abuses of criminal legal aid in other jurisdictions. Members may also access these materials through the SG PARL MP mobile app.

40. There are two categories of abuses which we need to be aware of.

    (a) First, some lawyers, not the majority, in other countries overbill, flout the Rules, for their own benefit. Quite egregious.

    (i) One example is Ontario, Canada. There was a lawyer who billed around S$160,000 between 2013 and 2016.

    (ii) He said this was for travel expenses, meant for cases where the lawyer had to travel more than 200 kilometers to the court.

    (iii) But a check showed that the lawyer’s office was actually quite close to the courts.

    (iv) It is just one example. There are many such examples.

    (v) We need to try and, first, be aware and second, avoid this sort of abuse. Overbilling in a variety of ways is not uncommon in these places.

    (b) Second and not infrequently, unmeritorious applicants who take advantage of legal aid. Includes individuals who are asset-rich or wealthy but find ways to meet the eligibility criteria. There are stories of legal aid recipients who turn up in Rolls Royce and other cars, which they say are not theirs, and they are held on trust for others.

41. Third, there are also cases where the applicants fulfill the means and merits tests, but are perceived to be morally undeserving of aid.

42. There has been an uproar in other jurisdictions when such cases are covered by Government-funded aid. In Victoria, Australia, around S$950,000, nearly a million dollars, was spent to defend a person by the name of Dragan Vasilijkovic. He was prosecuted for war crimes during the Yugoslav Wars.

43. The first two categories of abuse, we can try and have systems and frameworks, to try and detect and deter such practices.

44. The last category is trickier. Legal aid cannot depend on public outrage. Because once we categorise and the means and merits tests are satisfied, then, and I will come to it, we are going to exclude certain types of cases. But as long as it falls within the categories of cases which will be covered by legal aid, then public outrage on a case-by-case basis cannot be the basis on which legal aid is given or not given. And we will need to think through and explain our position carefully to the public.

C. ESTABLISHMENT OF A PUBLIC DEFENDER’S OFFICE

45. We have considered the lessons from others, as well as the feedback from the Law Society and Criminal Bar. I will now share the next steps for this major change, approach, for delivering criminal legal aid in Singapore.

46. We will set up a Public Defender’s Office, or PDO, to provide Criminal Legal Aid.

47. It will be fully funded by the Government.

48. The Government will continue to work with CLAS. They will deal with some criminal cases.

49. This will also help to preserve the pro bono spirit of the legal fraternity which has been a key pillar of legal aid.

C1. Structure of the PDO

50. The PDO will be established as a department under the Ministry of Law.

51. This is similar to the Legal Aid Bureau now, and the Insolvency & Public Trustee’s Office.

52. It will be headed by a Chief Public Defender - “CPD”.

53. We will adopt a hybrid model of criminal legal aid. This is similar to some of the common law jurisdictions that I spoke about earlier. It means that the PDO will have full time lawyers as employees of the PDO and they will take on cases as public defenders.

54. The PDO will scale up over a period of time.

55. A The public defenders will take on all of PDO’s cases in the early years. At a later date, the PDO will begin outsourcing some cases to a panel of qualified lawyers.

C2. Role of CLAS and PDO

56. The Government will continue to provide some co-funding to CLAS. The details of the funding will be assessed, and discussed in the light of the PDO being set up.

57. Other details will also have to be worked out, including cases which PDO will handle, and cases which CLAS will handle.

C3. Expansion of criminal legal aid coverage

58. Let me now move on to what types of criminal cases the PDO will cover.

59. We have decided to enhance coverage in both income and types of offences covered.

C3(i). Income coverage

60. Currently, CLAS covers up to the 25th percentile of resident households.

61. Our assessment is that we should increase this to the 35th percentile.

62. So, we plan to increase income coverage from the 25th to the 35th percentile of resident households.

63. This raises the per capita household income cut-off from $950 to $1,500.

64. This means more needy Singaporeans who require the services of a criminal defence lawyer will be covered.

C3(ii). Coverage of Offences

65. Second, we will expand the type of offences covered. It is easier to explain and illustrate this by saying what types of offences will not be covered.

66. We will not be covering regulatory offences, such as traffic summonses and departmental charges. We will also not be covering offences under nine pieces of legislation¹ whose primary purpose is to deter specific behaviours. These are gambling and betting, organised and syndicated crime, and terrorism. Offences under these Acts bring about significant negative externalities to society. Public funding will be difficult to justify being used towards defending such cases.

67. PDO will also have the discretion to exclude cases if the CPD thinks that the representation may not make a material difference to the case’s outcome. They will have to apply a strong merits test approach. This includes cases involving offences with established sentencing frameworks.

68. I mentioned earlier that we had consulted the Law Society Council and Criminal Bar. They were concerned that the expansion of legal aid would affect the livelihood of lawyers who were providing paid legal services.

69. We have analysed past data. Of the newly eligible persons who will benefit from expanded coverage, 60% would likely be litigants-in-person. Meaning the impact on paid work of lawyers should not be substantial.

70. We have to do the right thing here. Our assessment is that lawyers’ income should not be substantially affected and their income will not in the main depend on people at the 35th percentile and below.

71. What does this expansion mean, in terms of numbers? In FY 2020, CLAS covered around 712 cases. We estimate that with these changes, the total caseload for criminal legal aid could increase by another 50% or maybe a little bit more. If the take-up rate for legal aid increases, then of course this number could increase.

C4. Preventing abuse and ensuring fiscal sustainability

72. Earlier, I spoke about how other jurisdictions addressed rising costs. I also talked about how the system could be abused.

73. We will have to be careful about the cases the Government funds using taxpayers’ money.

74. In other jurisdictions, expansions in coverage contributed to higher costs.

75. We will have to be very careful to try and not strain the public purse.

76. We intend to put in place measures to try and ensure that aid is given only to deserving cases, and try and ensure that the costs of criminal legal aid remain sustainable.

C5. Staffing of the PDO

77. Let me now move on to the staffing of the PDO.

78. It will be staffed by lawyers who handle the work.

79. This can include:

    (a) Fresh graduates and younger lawyers.

    (b) Mid-career hires who want to do criminal legal aid work.

    (c) Legal Service officers. These officers will provide the depth of experience and institutional knowledge to build the PDO. They can help ensure quality control.

D. CONCLUSION

80. Sir, in conclusion, the measures I have mentioned stem from the same objective.

81. We want to enhance access to justice for vulnerable individuals in Singapore.

82. We will pass a Bill to codify these proposals and establish the Public Defender’s Office.

83. We aim to have the office start operations, at least in some modest way, by the end of this year, assuming the Bill gets passed in Parliament.

84. Thank you, Sir.

Annex – Examples of Abuses of Criminal Legal Aid in Other Jurisdictions

^{1. The nine Acts are: Gambling and betting – (1) Remote Gambling Act 2014, (2) Common Gaming Houses Act, (3) Casino Control Act, (4) Betting Act. Organised and syndicated crime – (5) Organised Crime Act 2015, (6) Massage Establishment Act 2017. Terrorism – (7) Terrorism (Suppression of Financing) Act, (8) Terrorism (Suppression of Bombings) Act, (9) Terrorism (Suppression of Misuse of Radioactive Material) Act 2017.↩}

Last updated on 04 Apr 2022