Second Reading Speech by Senior Minister of State, Mr Edwin Tong on Legal Aid and Advice (Amendment) Bill

19 Nov 2018 Posted in Parliamentary speeches and responses

1. Mr Deputy Speaker, on behalf of the Minister for Law, I beg to move, “That the Bill be now read a Second time”.

1. Introduction

2. Sir, access to justice is an important cornerstone of our society. The Government has strengthened our systems over the years to enhance access to justice for Singapore citizens and permanent residents. This includes working with the judiciary to enhance and improve court processes to save time and costs; and enhancing frameworks to enable Singaporeans to resolve their disputes quickly in a cost effective manner, such as through the use of mediation.

3. Even with various Government-driven initiatives to reduce the costs of dispute resolution, we recognise that some in our society may still be unable to afford their own lawyers for basic legal services. Providing access to justice to persons of limited means underpins the Legal Aid and Advice Act (“Act”), and the establishment of the Legal Aid Bureau (“LAB”).

4. To ensure that public funds are properly allocated to the most vulnerable persons who have reasonable grounds for legal proceedings they wish to pursue, the Act currently has a two-fold test for legal aid. First, applicants must satisfy the means criteria based on the applicants’ disposable income and disposable capital. Second, applicants must then pass a merits test.

5. The Government regularly reviews the Act to ensure that the Act remains able to meet the objectives that I have just set out. This Bill arises from our latest review.

2. Objectives of the Bill

6. The Bill does three things:

1. First, it provides for the means criteria to be set out in subsidiary legislation;
2. Second, it provides for greater flexibility for aid to be given to those who might fail the means criteria; and
3. Third, it improves the administration of legal aid.

Simplifying the Means Criteria for Legal Aid

7. A significant clause of the Bill is clause 7(a), which provides for means criteria to be set out in subsidiary legislation instead of the Act. This facilitates the modification and simplification of the means criteria.

8. Currently, the means criteria involve an assessment of disposable income and disposable capital.

1. Disposable income is calculated by taking the total income of the applicant and his or her spouse, and deducting various permitted deductibles such as living allowances and Central Provident Fund (CPF) contributions.
2. Disposable capital is calculated by taking the value of the property which an applicant possesses or is entitled to, and deducting various permitted deductibles such as a Housing and Development Board (HDB) flat owned and used by the applicant and his family as their home.

9. These criteria have worked well to identify those who have a real need for legal aid.

10. Nevertheless, some changes to the means criteria may better serve the most vulnerable in the future.

11. The Bill will allow us to provide for means criteria to be set out in subsidiary legislation, and we intend to simplify the means criteria, without compromising on its effectiveness at identifying the truly needy.

12. The revised means criteria will be aligned with those more commonly used by current social support schemes, and reference indicators such as:

1. The Per Capita Household Income (PCHI), and
2. The Annual Value (AV) of the applicant’s place of residence, and his savings and investments.

13. The new means criteria will involve assessing the applicant’s gross income and assets, instead of his disposable income and disposable capital. This also simplifies the application process for legal aid. Applicants will no longer need to provide various documentary proof of deductibles, and in setting the new PCHI limits, we intend to incorporate most of the permitted deductibles within the current means criteria to minimise the risk that applicants could be disadvantaged by the switch over from disposable income to gross income.

14. We will set out the qualifying limits for the new means criteria in subsidiary legislation next year, to account for the 2018, the latest, income data. The new means criteria will be set such that there will be no material impact on the number of households who will remain eligible for legal aid.

15. We will continue to regularly monitor and review the new means criteria after implementation, to ensure that legal aid remains available to persons of limited means.

Providing Greater Flexibility to Give Legal Aid

16. Other than simplifying the means criteria, the Bill also provides greater flexibility for legal aid to be given where it is just and proper to do so, for example, to those who may find themselves in extenuating circumstances.

17. This can be found in clause 7(b) of the Bill.

18. Currently, the Act only allows for a limited deviation from the means criteria. To illustrate, the Director of Legal Aid may disregard certain matters in determining the disposable income and disposable capital of an applicant in four specific circumstances defined in the Second Schedule. Those circumstances can broadly be summarised as follows:

1. One, where the applicant lives apart from his or her spouse.
2. Two, where the applicant has a sudden physical or mental disability.
3. Three, where the applicant has a sudden loss of income.
4. And four, where the applicant is involved in certain family proceedings involving children, or protection orders between spouses or ex-spouses.

19. In computing the applicant’s disposable income or disposable capital, the Director may:

1. Grant such applicants additional deductibles; or
2. Exclude the income of the applicant’s spouse.

20. However, the Act restricts how much the Director can do in these situations. It also does not allow the means criteria to be adjusted for other applicants who might otherwise fail the means criteria but do not fall within any of those four categories.

21. We understand that applicants may sometimes need more help. Applicants with other circumstances not currently prescribed in the Act may also face other strains on their financial resources, and they may not be able to afford legal fees.

22. For example, LAB currently is unable to help an applicant who fails the means criteria but cannot afford legal services because he has a sudden serious illness and has to pay for major medical procedures.

23. The Bill will provide greater flexibility for LAB to assist these applicants. Clause 7(b) allows the Minister to direct the Director to issue a Grant of Aid to an applicant who does not satisfy the means criteria, if the Minister is of the opinion that it is just and proper that legal aid be granted to this applicant.

24. The Minister may also authorise any person, including a panel of persons, to exercise this power.

Improving the Administration of Legal Aid

25. The remainder of the Bill makes general improvements to the administration of legal aid, and I will run through a few of the more significant provisions.

26. Clause 3 empowers the Director to appoint public officers to assist the Director, the Deputy Director or the Assistant Director of Legal Aid. Some of the appointed public officers will be specially-trained Legal Executives. These “Specialist Legal Executives” will be authorised to provide legal advice to applicants, and may also appear in court for certain matters such as uncontested divorces. They will first undergo rigorous and specialised training for this purpose.

27. Clause 7(a) also empowers the Director to decide on the merits test in certain proceedings, instead of referring the matter to a board (which comprises the Director and no fewer than two other solicitors). This is to streamline the merits test process for what could be straightforward cases, such as uncontested divorce cases where the parties have agreed on all related or ancillary matters.

28. Clause 10 amends the Act to allow aided persons to obtain additional court documents free of charge. Currently, they may only obtain a copy of the judge’s Notes of Evidence free of charge. The additional documents (such as Grounds of Decision or certified transcripts in relation to proceedings for which legal aid is granted) will be set out in the subsidiary legislation.

29. Clause 17 re-enacts the existing section 9 as a new section 22A, to clarify that the Director has the power to require contributions for legal advice cases. At present, it is envisaged that contributions may have to be paid where legal advice and assistance in preparing certain legal documents is requested. We do not intend to charge a contribution for applicants who have received only oral legal advice, as is the current practice.

3. Conclusion

30. Mr Speaker, in conclusion, the Bill builds on the good work of the LAB, supported by the legal fraternity and our key partner agencies, to continue enhancing access to justice. It facilitates the simplification of the means criteria for applicants, provides more flexibility for legal aid to be granted where just and proper, and overall improves on the administration of legal aid.

31. The Bill reaffirms the Government’s commitment to ensure access to justice for the most vulnerable, and I trust these changes will also enhance LAB’s ability to do its work in the many years to come.

32. Mr Speaker, Sir, I beg to move.

Last updated on 20 Nov 2018