Update on Government’s Study to Enhance Criminal Legal Aid

In November 2021, Minister for Law informed the House that his Ministry is studying the feasibility of setting up a Public Defender’s Office (“PDO”). I sought an update on this matter in the April sitting of the House. I was delighted to note Minister’s announcement of the Government’s decision to proceed to set up the PDO after carefully weighing the pros and cons. This is a milestone! In the past, the approach was to rely on Law Society’s CLAS volunteers. Minister Indranee Rajah, as a backbencher in Parliament, remarked in 2006 that “it just seems a little odd that for something as serious as a criminal charge, these persons would have to actually depend on a volunteer scheme”. I look forward to the introduction of the bill to set up the PDO in the near future. My question and the Minister’s response is set out below.

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Mr Murali Pillai asked the Minister for Law whether he can provide an update on the Government’s study to enhance criminal legal aid and, in particular, to consider the feasibility of setting up a Public Defender’s Office.

The Minister for Law (Mr K Shanmugam): Thank you, Mr Speaker Sir. Sir, 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.

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 or the Criminal Legal Aid Scheme run by the Law Society.

In March 2015, I announced that Government would fund CLAS and for CLAS itself, when we got funding included, some changes were made.

First, the means test was redefined, enhanced, to allow applicants to qualify for criminal legal aid because the funding was supported by the Government. It directed aid to those who needed it most. Second, an honoraria was paid to CLAS lawyers, to recognise the contribution of volunteers who will take on criminal legal aid cases.

However, it has to be said, the honoraria was very nominal. In 2018 and 2019, we started thinking that we could go further, in providing aid. We began reviewing our criminal legal aid model. We engaged the Law Society and the Criminal Bar for their views. We asked if they would support an expansion of criminal legal aid coverage. The 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 will take away work from lawyers and whether a lawyer’s income will suffer.

They suggested expanding the coverage of offences, instead of increasing the means test coverage. They did not want us to cover more people, but they were quite happy to consider whether we can cover more offences.

After taking in the feedback, we came to our views. 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. But there were a few issues to think about. 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. Second, to manage costs to ensure fiscal sustainability. Third, maintain our lawyers’ pro bono spirit.

I raised these three key questions. One, should we change the model we have and go for a full Government-funded legal aid? Two, should we give up our public-private sector partnership model in delivering criminal legal aid? Three, should we expand CLAS beyond the lowest 25% in terms of household income?

These are not easy issues. We undertook a study of the different criminal legal aid models in other countries. We looked at 11 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, 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.

And we looked more closely at six of them, namely the United Kingdom, New Zealand, New South Wales and Victoria, Ontario and Hong Kong. These six legal jurisdictions share similar common law traditions and philosophies with Singapore. They aim to provide criminal legal aid to the most vulnerable persons. I will now set out our observations.

In nine of the 11 jurisdictions survey, a Public Defender Scheme is in place. The exceptions are Germany and Ontario. They adopt what is called a judicare model, where the cases are outsourced to the private sector for a fee. Our view is that the Public Defender model has some benefits over the judicare model. The Public Defender Scheme allows development of expertise, because institutional knowledge can be built up. In the judicare model, assignment of counsel is done ad hoc. Second, the greater economies of scale and that can help better manage costs. And third, our study shows that in the Public Defender model, there is the public defender’s specialised office. Overtime, it better able to access to expert witnesses, medical, forensic, analysts and so on.

Let me now consider how Public Defender schemes are organised overseas. Other than Ontario, all the common law jurisdictions we studied adopt a hybrid model. This means that the state hires in-house lawyers as Public Defenders and also outsources some cases to the private lawyers. 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 we are considering. A strong partnership between the Government and the Criminal Law is, in my view, quite important.

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. They complement the Public Defenders employed by Victoria Legal Aid.

In Singapore, we have had a very strong partnership with the Law Society and the legal fraternity. They have a very strong pro bono and public spirit and we want to preserve this cooperative relationship. So, the Victorian model is one way we can do that. I will come back to this later.

Let me now move on to funding. Ten of the eleven jurisdictions we studied, are fully funded by 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. In any system like this, escalating costs are major concerns where criminal legal aid is fully funded by the State.

There are various reasons for the increase in costs. They include the lack of a robust means and merits assessment framework and safeguards as coverage expands invariably and inevitably. Second, overbilling by private sector lawyers to whom criminal cases have been outsourced to. 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 2018. 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 10 years.

After awhile, it was no longer sustainable and some of these countries have then had to impose very sudden, drastic cuts to funding. The UK had to do it. In 1996, Ontario cut its legal budget by 22% to control costs. There were adverse consequences which remain today, including delays in clearing cases. We need to learn from these experiences and try to avoid going there and then taking the cutbacks and steps to control costs. And we have to structure it in a practical, workable way from the beginning and try and make our criminal legal aid model sustainable.

Let me now touch on some other key lessons that we noted from our study of other jurisdictions. First, it is important to structure the Public Defender agency carefully. Good governance is important. The agency can be a part the Government. At the same time, 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. A second concern, as I have said earlier, prevent the abuse of the criminal legal aid system.

Mr Speaker, Sir, with your permission, may I ask the Clerks to distribute an annex to my speech, which I will not go through but will be taken as part of my speech?

Mr Speaker: Yes, please.

Mr K Shanmugam: The annex contains examples of abuses of criminal legal aid in other jurisdictions. There are two categories of abuses which need to be aware of.

First, some lawyers, not the majority, in other countries overbill, flout the rules, for their own benefit. Quite egregious. On example is in Ontario, Canada. There was a lawyer who billed around S$160,000 between 2013 and 2016. He said this was for travel expenses, meant for cases where the lawyer had to travel more than 200 kilometers to the court. But a check showed that the lawyer’s office was actually quite close to the courts. It is just one example. There are many such examples. 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.

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.

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

The first two categories of abuse, we can try and have systems and frameworks to try and detect and deter such practices. The last category is trickier. Legal aid cannot depend on public outrage because once we categorise and the means and merits tests are satisfied — merits, means; 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 would be covered by legal aid, then public outrage from a case by case basis cannot be the basis on which legal aid is given or not given. We will need to think through and explain our position carefully to the public.

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. We will set up a Public Defender’s Office, or PDO to provide criminal legal aid.

It will be fully funded by the Government. The Government will continue to work with CLAS. They will deal with some criminal cases. This will also help to preserve the pro bono spirit of the legal fraternity which has been a key pillar of legal aid. The PDO will be established as a department under the Ministry of Law (MinLaw). This is similar to the Legal Aid Bureau and the Insolvency & Public Trustee’s Office. It will be headed by a Chief Public Defender, call him “CPD”. 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. The PDO will scale up over a period of time. The Public Defenders will take on all of PDO’ cases in the early years. At a later date, the PDO will begin outsourcing some cases to a panel of qualified lawyers.

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

Let me now move on to what types of criminal cases that PDO will cover. We have decided to enhance coverage, both in terms of income and the types of offences covered. Currently, CLAS covers up to the 25th percentile of resident households. Our assessment is that we should increase this to the 35th percentile. So, we plan to increase income coverage from the 25th to the 35th percentile of resident households.

This raises the per capita household income cut-off from $950 to $1,500. This means more needy Singaporeans who require the services of a criminal defence lawyer will be covered.

Second, we will expand the type of offences covered. It is easier to illustrate that by saying what types of offences will not be covered. We will not be covering regulatory offences such as traffic summonses and departmental charges. We will not be covering offences under nine pieces of legislation 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. I think will be difficult to justify public funding being used towards defending such cases.

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

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

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

What does this expansion mean in terms of numbers? In FY2020, CLAS covered around 712 cases. We estimate that with these changes, the total caseload for criminal legal aid could increase by another 50%, or may be a little bit more, if the take-up rate for legal aid increases, and of course, this number could increase.

Earlier, I spoke about how other jurisdictions addressed rising costs. I also talked about how the system could be abused. We will have to be careful about the cases the Government funds using taxpayers’ money. In other jurisdictions, expansions in coverage contributed to higher costs. We will have to be very careful to try and not strain the public purse. We intend to put in place measures to try and ensure that aid is given only in deserving cases and try and ensure that the costs of criminal legal aid remain sustainable.

Let me move on to the staffing of the PDO. It will be staffed by lawyers who handle the work. This can include fresh graduates and younger lawyers, mid-career hires who want to do criminal legal aid work and Legal Service officers. These officers will provide the depth of experience and institutional knowledge to build the PDO. They can help ensure quality control.

Sir, in conclusion, the measures I have mentioned stem from the same objective. We want to enhance access to justice for vulnerable individuals in Singapore. We will pass a Bill to codify these proposals and establish the Public Defender’s Office.

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.

Mr Speaker: Mr Murali Pillai.

Mr Murali Pillai (Bukit Batok): Mr Speaker, Sir, I thank the hon Minister for his Ministerial Statement, which is a response to my Parliamentary Question asking for an update on his proposal to set up the Public Defender’s Office. I applaud the Government’s announcement to set up this Public Defender’s Office. This is a shift from the previous position of the Government not to set up the Public Defender’s Office. It is a good example of how the Government continually looks at policies and makes the necessary changes to suit the circumstances.

I have two supplementary questions. One, in relation to the staffing of the Public Defender’s Office with legal officers. As this House will note, we had moved amendments in the Constitution to create a Legal Service Commission as well as a Judicial Service Commission. As far as the Public Defender’s Office is concerned, may I ask the hon Minister which Commission would be superintending over the officers so that they can be properly developed to be capable and delivering their duties without favour, based on expectations set of them?

The second question is in relation to the exclusions. I listened to the hon Minister, he mentioned about, I think, nine statutes which he proposes to exclude. Does he propose to also exclude private prosecution? Because as the hon Minister is aware, there is public prosecution, there is private prosecution. May I ask as a matter of concept, the PDO is not meant to be engaged for private prosecution?

Mr K Shanmugam: I think on the two questions, I will give an answer. But first on the comment on declining PDO, I will stand corrected, I am not sure that we expressly declined to have a PDO. But I think in substance, the Member is correct in that the Government has previously taken the position that criminal legal aid ought not to be funded.

But as I described earlier in my Ministerial Statement, by 2013, we explained that we will do so and we did so through CLAS. So, this is a further and very significant step forward. That is about nine years now where we have been funding criminal legal aid.

As to the specific questions as to which Commission, I think the right position ought to be that the officers within PDO, qua-PDO should not be subject to either Commission. Neither the Judicial Service Commission nor the Legal Service Commission. They will be Ministry of Law officers, in a department under MinLaw and separate from both Commissions. I do not in principle, completely rule out secondments from either Commission. Those are matters of detail which need to be looked at. But when they exercise their duties qua-PDO officers, they will be assessed primarily by MinLaw.

Second, private prosecutions. Again, I want to be careful about setting things in stone today. But the thinking is that private prosecution should, in principle, not be covered by this.