Dáil Éireann debate -
Thursday, 15 Feb 1962

Vol. 193 No. 2

Criminal Justice (Legal Aid) Bill, 1961 —Second Stage.

Minister for Justice (Mr. Haughey)

I move that the Bill be now read a Second time. The object of this Bill is to introduce a scheme of free legal aid in certain criminal cases. It involves a radical departure from the present arrangements which allow free legal aid only to poor persons accused of murder and also in certain cases where a new trial is ordered by the Court of Criminal Appeal or the Supreme Court. Although the scheme is new, and therefore to some extent experimental, it is comprehensive in character and provides not only for legal aid in criminal courts of first instance but also in the various courts of appeal. In this respect we are departing from normal precedent as both the British and Northern Ireland schemes, when introduced, contained no provision in relation to appeals from summary courts by way of case stated or otherwise. In fact, this is still the position in Northern Ireland though a recommendation by the Steele Committee there to extend the scheme to these appeals has been accepted in principle. The Government have considered it advisable to commence with a scheme that is as comprehensive as possible in our particular circumstances.

Although the provisions of the Bill have necessarily to be formulated to deal separately with all the various cases in which legal aid can be made available and are therefore somewhat lengthy, the main features of the scheme can be stated fairly simply. A person who cannot afford to be legally represented and who is charged with any offence before the District Court may, by reason of the gravity of the charge or of exceptional circumstances, be granted by the Court a certificate which will entitle him to the services of a solictor and, where he is charged with murder and the Court thinks fit, of counsel. Any person returned for trial for an indictable offence and who cannot afford legal representation may also be granted free legal aid in the preparation and conduct of his defence at the trial and have a solicitor and counsel assigned to him for that purpose. Such a certificate may be granted either by the district court when the accused person is returned for trial, or by the trial judge. It will be granted in murder cases merely on the ground of insufficient means; in other cases regard must also be had to all the circumstances of the case, including the nature of any defence that may be set up. In appeal cases, legal aid will be provided for persons of insufficient means in offences of a serious nature or in exceptional circumstances.

The grant of legal aid is subject to the overriding consideration that it must appear to the court to be essential in the interests of justice, having regard to the factors I have mentioned in relation to the various kinds of criminal proceedings, that the accused should have legal aid in the preparation and conduct of his defence or of his appeal, as the case may be. It will be seen, therefore, that the court is being given not only responsibility for determining whether the means of a person are insufficient to obtain legal aid but also a wide discretion in determining in what cases it is proper to allow free legal aid.

I think there will be general agreement on the necessity for having a scheme of this kind. It is unfortunately true that miscarriages of justice can take place under the present system because accused persons are unable to afford legal representation. It is impossible, in the nature of things, to say definitely how often, or how seldom, a miscarriage of justice occurs for that reason but I believe the number of genuine miscarriages of justice in this country is not substantial. I base my belief on the voluntary contribution which the legal profession has made by supplying proper representation in deserving cases and on the high standards which our judges and justices have consistently maintained in ensuring that accused persons who are not legally represented are treated with scrupulous fairness. Notwithstanding that the amount of serious injustice arising from the absence of legal aid is not substantial, the present position may entail serious hardship, including perhaps loss of liberty, to individual citizens and for this reason alone it is desirable to have a legal aid scheme.

The situation does not, however, call for the grant of free legal aid in every criminal case or even in serious criminal cases where, as so often happens, there is no difficulty about the facts or about the law applicable to them. For example, free legal aid could not be justified in the case of experienced criminals—and there are quite a few of them—who have deliberately decided to make a living of crime. These criminals frequently continue to commit burglaries and house-breakings even while on remand in the expectation, which no doubt is often realised, that their activities may not be discovered or, if they are, that the sentence they will eventually receive will not by any means be proportionately greater. They are sufficiently well versed in the intricacies of criminal procedure not to require professional legal services at public expense. At the same time I realise that the possibility of some exceptional circumstances which might make it essential in the interests of justice to provide free legal aid even to criminals of this sort cannot be completely excluded.

Accordingly, the scheme provided for in the Bill does not propose to allow the grant of free legal aid in any indiscriminate fashion. The courts will have the responsibility of examining each case—except where criminal appeals are permitted to be taken to the Supreme Court and where a point of law of exceptional public importance is bound to be involved—to see whether having regard to the particular circumstances it is essential in the interests of justice that free legal aid be provided. I have no doubt that the courts will interpret these provisions in a common sense manner just as similar provisions have been interpreted in Britain and Northern Ireland. In this way genuine miscarriages of justice will be prevented and the grant of legal aid will be confined to serious cases of real doubt or difficulty.

As the Bill is essentially an enabling measure, I think I need refer particularly only to the provision about regulations in Section 9. Somewhat elaborate administrative arrangements will be necessary to provide for the coming into operation of the scheme. The forms of the various certificates and the manner in which solicitors and counsel are to be assigned pursuant to them will have to be prescribed. Details of these administrative arrangements are at present being worked out but I can say that, as regards the assignment of solicitors and counsel, a list will be prepared in each court of solicitors and counsel who are willing to undertake the defence of persons who have been granted legal aid certificates.

It will be a matter for the justice or judge, as the case may be, to assign a solicitor from the list but he will be required to take into consideration any representations which the prisoner may make. Any member of the Bar whose name appears upon the list kept in the court may be instructed on behalf of the prisoner by the solicitor who has been assigned.

Fees will have to be prescribed for professional work done under the scheme and I have received representations from the Law Society and the Bar Council on the matter. I am giving careful consideration to these representations. I have been assured by the Law Society and the Bar Council of their desire to co-operate in making this scheme a success and I am sure that it will be possible, with the co-operation of both professions, to minimise any initial difficulties that may arise in the early stages of its operation. I have already had a preliminary discussion with the Law Society and I expect to discuss the scheme with the Bar Council very shortly.

Before concluding, I should like to say a word about another matter which may be present in the minds of some Deputies in connection with this Bill. I refer to the suggestion which has been made from time to time that the costs of defendants who are acquitted should be met from public funds. The suggestion is not that costs should be paid from public funds in all cases of acquittal because, quite obviously, a dismiss or a verdict of not guilty does not always, or even often, mean that the acquitted person is entirely innocent of the charge but rather that the charge has not been proved. What is in mind is that there should be discretion vested in the court which dismisses the case or acquits the defendant to award the costs of the defence, it being understood that this discretion would not be exercised except in a most exceptional case, such as, for example, a case of mistaken identity or where it was clear that a prosecution should never have been brought. In my opinion, the suggestion is worthy of serious consideration, but I do not think that, even if it were accepted, it would be appropriate to give effect to it in this Bill and I intend to await some practical experience of the operation of the present scheme before considering the matter further.

A second related matter is the question of providing a system of legal aid and perhaps also legal advice in civil cases. This proposal is one that could not be embarked upon without detailed investigation. Such a scheme would be costly: in Northern Ireland the cost has been estimated to be in the region of £90,000. Here again it is obvious that we must wait until experience has been gained of the operation of the criminal legal aid scheme here before exploring the possibilities of embarking on a scheme of civil legal aid and advice.

This is a piece of social legislation which will, I think, be acceptable in principle to all sides of the House. Any suggestions that Deputies may wish to put forward for the improvement of any particular aspect of it will be welcomed by me and will receive careful consideration before the Committee Stage.

Mr. M.J. O'Higgins

At the moment, at any rate, I think the Minister will concede that this Bill is all sizzle and no steak. The steak will not be served up to us until the Minister makes his regulations under the Bill, but, in so far as the Bill is a start on the question of free legal aid, I certainly welcome it.

We should bear in mind that although the Minister speaks of the Bill as being a radical alteration and comprehensive in character, the Bill is nevertheless a very limited one. By reason of the way it is deliberately framed, its interpretation will be even more restricted than would appear from the Title. The idea of giving free legal aid in necessitous cases is a good one, which will be welcomed by the House as part of social welfare legislation, but the Bill is restricted purely and simply to criminal matters. In that we are still lagging very far behind the legislation in England, where there is a comprehenstive free legal aid scheme, both on the criminal and civil side.

The Minister seemed to be rather nervous on the question of expense on the civil side and referred to the estimate in Northern Ireland. He may be mistaken in this because my understanding of the position is that in England, when the civil free legal aid scheme was operated there, the net cost to the State was comparatively low. If my memory serves me correctly, it was something in the region of £1,300,000 a year, which is very small having regard——

Mr. Haughey

The Deputy is talking about——?

Mr. M.J. O'Higgins

The civil side in England. The figure I heard was something under £1,500,000 net—as I said, something like £1,300,000. That is very small having regard to the fact that there is a very much bigger population in England and that approximately 60 per cent. of the cases which were dealt with on the civil side under the free legal aid scheme were divorce cases. Accordingly, the Minister probably need not be nervous on the question of the cost in contemplating free legal aid on the civil side here because you must remember it is the net cost to the State that is important to the Minister and, obviously, in any legal aid scheme which envisages both criminal free legal aid and civil free legal aid the brunt of the cost will be borne by the criminal side and not by the civil side because, when a deserving case is assisted by the State by providing legal aid, if the case is a good one the odds are that there will be no costs at all to be borne by the State because they will be borne by the unsuccessful litigant, assuming the successful litigant is what I would call the State-aided one.

The Bill at the moment is confined to legal aid on the criminal side. It will be much more restricted than that. The Minister adverted to this and gave some of the reasons. Under this Bill, legal aid will be supplied only if the court finds two things. One is that the person applying for a certificate to enable him to have free legal aid is a person of insufficient means. All of us will agree that that is a provision which should be in the Bill. It goes on also to say that the court must also find that, by reason of the gravity of the charge or of exceptional circumstances, it is essential in the interest of justice, that he should have legal aid in the preparation and conduct of his defence.

That, as I say, will further restrict the application of this Bill. It also raises, to my mind anyway, a question of principle. It seems to me that what we are saying in this Bill is that we are prepared to concede it is necessary to ensure justice provided the charge is grave or the circumstances exceptional but that we are not concerned with how justice is done if the charge cannot be regarded as grave or the circumstances exceptional. I do not think that is a good principle and I think it also raises, from the point of view of the applicant for a legal aid certificate, this question: that he is virtually put in the position of disclosing his defence in advance. If we were talking about a free legal aid scheme for civil matters that might be reasonable. I do not think it is reasonable in criminal cases that you should put the defendant who, after all, is presumed to be innocent until he is proved guilty, in the position that before he gets any assistance under this Bill he must, in fact, disclose his defence or a substantial part of it.

If we approach this from the view that all citizens are to be held to be equal under the Constitution or equal before the law, we must accept the Bill as necessary to ensure that people who cannot fend for themselves in legal matters, or who have not got sufficient means to engage a solicitor or counsel, must be given assistance. The Bill does recognise that and I welcome it for that reason. It has a number of defects. The first I have already referred to— perhaps it is unfair to call it a defect —namely, the restricted character of the Bill and it will probably become more restricted even than appears at first sight.

Also I notice in the Bill that it is necessary and specifically provided that the applicant for free legal aid must himself apply for the certificate either in writing or appear personally before the court. I would urge on the Minister between now and Committee Stage to reconsider that provision. It seems to me that the ordinary type of person who will require free legal aid is most unlikely to be able to make a proper application in writing and it is most unlikely also that he will be able to make a proper case for himself if he has to appear before the court, whether it is the district court or one of the higher courts, to get any of the certificates provided for in the Bill. I may possibly have read the Bill too hastily, but my impression from reading it is that it is specifically provided that the applicant must do this himself and that he is not given the option of moving through a solicitor or any other agent.

Thirdly, this Bill, to my mind, suffers from the very grave defect that it does not provide that this scheme should be operated by the legal profession—either the barristers or the solicitors. It seems to me that under the scheme as outlined in the Bill this is to be a Civil Service administration and I think that is wrong and I think it is dangerous.

In matters requiring free legal assistance on the criminal side, very often Departments of State, or the State itself, will be the accuser. Yet, the administration of this free legal aid is apparently to be put into the hands of the Civil Service. It is quite clear that if this Bill, or any scheme under the Bill, is to be workable, it can be workable only with the full co-operation of both branches of the legal profession and I think the Minister should take heed of what happened in connection with the health services in this country.

I believe that a great deal of our difficulties with the health services in this country were due to the fact that the medical profession were not fully invited to give their co-operation to the schemes which were proposed or to co-operate in a way which would make the administration of the schemes workable. The Minister should be very careful that he does not fall into the same error with regard to the legal provision in this Bill. Any scheme of free legal aid, if it is to be workable, must, in my view, be worked and administered by the professions, with the assistance of the State.

The Minister referred to the Steele Committee report in Northern Ireland. It is worthwhile having a look at paragraph 107 of that report:

All the evidence put to us from both lay and legal sources strongly stressed that it was undesirable that any scheme of legal aid or advice should be administered directly by persons employed by the State, or by any legal or public authority. We entirely agree with this view. The fact that the State and local authorities are themselves frequently parties to litigation in civil proceedings is an unanswerable argument against either of them being in control of the administration of a legal aid scheme. We consider it important that the traditional and long-established relationship, privileges and responsibilities between client, solicitor and counsel should be preserved and it follows from this that any scheme, its organisation, administration and control, must be in the hands of the legal profession, which should itself provide the necessary legal services and be remunerated on the normal professional basis.

Mr. Haughey

All that refers to civil proceedings.

Mr. M.J. O'Higgins

No—civil or criminal.

Mr. McGilligan

It says cases in which the State or local authorities would be clients.

Mr. M.J. O'Higgins

"We entirely agree with this view. The fact that the State and local authorities are themselves frequently parties to litigation in civil proceedings...." Litigation in civil proceedings.

Mr. Haughey

Paragraph 107 refers, I think, exclusively to civil proceedings.

Mr. M.J. O'Higgins

The Minister may be correct, but I think the same arguments apply. He will, I am sure, concede that in the Guthrie report in Scotland the same view was maintained in relation to the criminal side. The Minister may be correct in saying paragraph 107 relates to civil matters. I do not think it is really important. All these arguments apply equally to the criminal side, apply with very much greater force to the criminal side than they do to the civil side. On the civil side, while State Departments and public authorities are frequently parties to litigation, I should imagine that the proportion of cases on the criminal side in which they are parties would be fewer, but in most criminal cases the State will be a party. It is only in the odd case—a dispute between neighbours, one neighbour bringing a charge for assault, or something like that, against the other—that one has a lay person as complainant in a criminal matter.

The view I am expressing is not new. About 12 years ago, I was a member of the Dublin Corporation. The question of free legal aid was discussed there. I have had a look at the reports and I see that I suggested, by way of amendment to the motion in 1948, and the amendment was seconded by the late Alderman Peadar Doyle—

"That the Council is of opinion that there is urgent need for the establishment of a Legal Aid Scheme for the purpose of giving needy citizens free legal assistance, and of aiding at a nominal and scaled charge, persons who are within the National Health Insurance Society's income limit; and that the Council requests the city manager to invite the Council of the Bar of Ireland and the Council of the Incorporated Law Society of Ireland to enter into discussions with the City Council with a view to formulating definite proposals on the subject for submission to the Minister for Justice and the Minister for Local Government."

I simply mention the matter to show that I did then——

Mr. Haughey

Avant garde!

Mr. M.J. O'Higgins

——and still do regard the co-operation of the professions as of particular and prime importance. I think the Minister will concede that that is so.

Mr. Haughey

I am accepting that is the Deputy's only motive in drawing attention to that.

Mr. M.J. O'Higgins

That principle is not recognised here and that is a weakness in the Bill. I urge the Minister very strongly, certainly if there is to be any extension of free legal aid to the civil side, that he should ensure that its administration is left to the legal professions. In some respects, we are in a difficult position discussing the Bill because, as in the case of many other Bills, implementation will depend on ministerial regulations and until we see the regulations, we can have no idea how the Bill will fare.

There is no provision in the Bill, there is no guide in the Bill, as to how the remuneration of solicitors and counsel will be dealt with. The Legal Aid Advice Act of 1949 in England lays down a guiding principle and I think the Minister should incorporate a similar principle in this Bill. The section in the 1949 English Act provides that the Secretary of State in exercising any power to make rules and regulations as to the amounts payable to counsel or solicitors assigned to give legal aid, and so on, shall have regard to the principle of allowing fair remuneration according to the work actually and reasonably done. It would be no harm if the Minister were to insert a similar guiding principle in this Bill for the benefit of himself and whatever section of his Department will deal with the question of remuneration.

There is one other point I should like to raise in relation to Section 8 which provides:

Where a legal aid (trial on indictment) certificate is granted in respect of a person, the Court of Criminal Appeal shall not have jurisdiction under Section 34 of the Courts of Justice Act, 1924, or Section 5 of the Courts of Justice Act, 1928, to award costs to the person in respect of court proceedings to which the certificate applies.

That raises the question that under the 1924 and 1928 Acts, a person was entitled to get complete indemnity in respect of costs. The Minister is now providing that if the defendant obtains a free legal aid certificate, he will not get the full indemnity which was hitherto provided. My recollection is that in the explanatory memorandum the Minister explains that. I think he referred to it in his opening remarks by saying: "The purpose of this provision is to obviate double payments of costs by the State." I would suggest to the Minister that that can be very simply provided for by including in the Bill a provision that the costs paid by virtue of the free legal aid certificate should be offset against the costs which the court, but for this Bill, would be entitled to grant under the 1924 or the 1928 Act.

If the Bill remains as it is at present, it means that simply because a person was not able to afford his own defence and had to get a free legal aid certificate he will be precluded from getting the full indemnity to which but for that he would have been entitled. Of course, it is not the defendant who will suffer. It is his legal advisers. I do feel that members of the profession who co-operate in trying to make this Bill and the scheme under it workable should not be penalised for doing that. That is, in fact, what it amounts to and I should like the Minister to have another look at that before the Committee Stage and possibly provide that the matter might be dealt with by set-off rather than as suggested by him now.

With the exception of those few criticisms, which are not intended as nagging criticisms, I welcome the Bill. I hope that the Minister's Department, in the not too far distant future, will go the next step of introducing a comprehensive Bill not only on the criminal side but on the civil side also.

Mr. McGilligan

This Bill will not advance things very much but so far as it goes it is to a great extent welcome. A person who cannot afford to purchase legal aid at the moment will get aid without any out-of-pocket expenses. Poor people or people who find themselves in restricted circumstances and who are charged with very serious offences on the criminal side nearly always get aid from both sides of the legal profession but as regards the ordinary person who cannot purchase legal aid I do not see that it will make much difference. I have no doubt that before long this Bill will be described as another piece of legislation to give more money to the profession. However, it means that people who up to now have acted gratuitously without any hope of reward will have some hope of receiving something for their efforts. It should be recognised that not merely in a serious case but even in quite small cases which are a source of anxiety to poor people, the aid of the solicitors' profession undoubtedly is very much available in the district court and the members of my own profession aid at the higher levels in that grade as far as the individual is concerned.

There is not very much change as far as the members of the profession are concerned. They may or they may not achieve very much. First of all, to repeat very briefly what Deputy O'Higgins has just said, this is restricted entirely to criminal matters. Not merely that, but it is criminal matters where the charge is grave, as put in one case, where the offence is serious, or where there has been a conviction and there is an appeal. In addition to its being a grave charge or a serious offence it has to be proved that the person's means are insufficient.

I do realise that there is the consideration that because of exceptional circumstances it may be essential in the interest of justice that we should have legal aid. Exceptional circumstances will not often apply to the lower levels of trial. There is the region of cases stated where some point of special importance to the public is in issue, but in this case, of course, the offending person does not worry very much whether the point is worth taking to a higher court as a case stated or as a point of law. His interest is entirely how he is going to be affected by some kind of fine or some term of imprisonment. There is not a great deal of advance here. There is some sign of advance but nothing much to trumpet about.

I agree with what Deputy O'Higgins says about the administrative side. In the earlier sections the scheme is outlined, the special circumstances of the offence, insufficient means, all the time restricted by the framework of criminal matters. Then we come to the regulations to be made under Section 9. The whole thing is to be done by regulation and, amongst other things, the regulations are being made by the Minister for Justice and the Minister for Finance together or, I suppose, the usual thing, by the Minister for Justice under the control of the Minister for Finance. He has to decide what rates or scales of fees, and so on, are payable out of moneys provided by the Oireachtas and, secondly, the manner in which solicitors and counsel are to be assigned. Surely at that point it would be appropriate to say "after consultation with the Bar Council of Ireland or the Council of the Incorporated Law Society."

The question of the assignment, that is to say, the choice of the individual firm of solicitors and the individual practitioner on the barristers' side, is a very important matter. There are also the rates of remuneration referred to in the Guthrie Report. Seeing that this Bill is restricted to the criminal side surely there is great need for taking care with certain things. In this country all criminal offences must be prosecuted in the name or the suit of the Attorney General. He becomes a party on one side to all criminal proceedings. It ought to be quite clear that his office should have nothing to do with the assignment of counsel.

Mr. Haughey

He will not have anything to do with it.

Mr. McGilligan

We shall wait until we see the regulations. The only occasion on which counsel are assigned nowadays is in respect of constitutional cases, and if we have got to have a murder trial assignment, it is done by the court. It is to be hoped that will be the procedure to be followed. Surely the experience and the reputation of the two councils of the Bar of Ireland and the solicitors' profession are things which ought to be tied in with this legislation.

I note the expression of view from the two associations that they were favourably disposed and that they will co-operate. Of course they will but there should be co-operation from the other side. The co-operation of the other side could be obtained if they were associated even in a consultative capacity with the making of these regulations. I know the matter of finance was under the control of the Lord of the Treasury and now under the Minister for Finance. That is all right. We are gradually getting away from that sort of view. The fact that moneys are paid out of the Oireachtas need not be regarded as such a handicap as it used to be. It would not, I think, destroy the effective control of the Minister for Finance in regard to the large resources of the State, it would not to any great extent slacken his grip in these things to have an association with two such reputable bodies on such matters as the emoluments which are to be given and the manner in which solicitors are to be assigned in pursuance of the certificate.

An interesting thought will certainly occur to people reading this provision about legal aid. Take a person charged with a very serious offence who has insufficient means and who has to get legal aid. Supposing a man is charged with a very serious offence in the nature of fraudulent conversion or something like that and is, at the same time, going through the bankruptcy courts on the grounds that he is insolvent. Could such a person qualify for legal aid? There has been a notable case here recently which will cost the State an enormous sum of money because at a certain stage the Court of Criminal Appeal ordered that certain charges were to be tried. It had to be done at the expense of the State. I am sure that expense will be measured in a different way from what the regulations under Section 9 would apply to.

Deputy M.J. O'Higgins made a certain suggestion which appears reasonable. We have Taxing Masters. Could the system of remuneration not be put on a basis such as the Taxing Master would pass if it was an ordinary criminal case? We have these functionaries. They are in operation. Instead of leaving this to be met by two Ministers, with a regulation to be brought before the House to either take it or leave it, it would be much better to use the machinery available, the two societies and the Taxing Master's Office.

Mr. Colley

I want to congratulate the Minister on his strenuous efforts to bring forward law reform in this country. Deputies on the other side of the House have indicated that they do not think much of this Bill. Deputy McGilligan said it was nothing to trumpet about. It is the first such Bill we have had in Dáil Éireann and considerable credit is due to the Minister for its introduction. It does not tackle the whole problem, as the Minister made quite clear, but it is a step in the right direction which I think will be welcomed on all sides.

There are a few matters to which I should like to draw the attention of the Minister. Some of them have already been mentioned by Deputy O'Higgins. Perhaps I may be permitted to reinforce them? It is obvious that the success of any scheme of free legal aid depends on the co-operation of the legal profession. The Minister has been assured of that co-operation in principle and I have no doubt he will get it but, on his side, he must ensure that the scheme is operable from the legal profession's point of view and that it is fair to them.

The legal profession feel strongly that there should be no incursion by the State into the relation between solicitor and client or between counsel and solicitor and client. It may be that this scheme will not result in any incursion. One of the difficulties is that, because we do not know what will be contained in the regulations to be made under the Bill, we do not know to what extent we have to guard against that danger. I urge the Minister to ensure that the regulations are such that there will be no possibility of its being alleged that there is any incursion into the solicitor and client relationship by the State or by any civil servant.

If the Minister cannot accept at the moment, for the limited purposes of this Bill, the principle of having the scheme operated by the legal profession I urge him to consider accepting—and, if possible, to commit himself in public—that principle for any extension of this scheme which will undoubtedly take place in the future. It is essential that the accused person who is to obtain free legal aid should have a choice of solicitor from the panel available. The Minister said the wishes of the accused would be taken into account. I do not think that goes far enough. Provided there is a panel available, if the accused selects a particular solicitor or counsel to defend him, and that man is willing to act, he should be the man to act for him and not anybody assigned by the judge or anybody else.

Mr. M.J. O'Higgins

Hear, hear.

Mr. Colley

Because we have not the regulations, we do not know how this will operate. I would ask the Minister to ensure that that principle is enshrined in the regulations, without any possibility of doubt. I had a little doubt as to what the Minister said about accepting the principle.

Mr. Haughey

I am not fully accepting it.

Mr. Colley

I would ask the Minister to think again. It is essential that if a panel of people are available to do this work and the accused person selects one of them he should be the man who will act for him. Otherwise, if justice is done it will not appear to be done.

Mr. M.J. O'Higgins

Deputy Colley is quite right. What he says goes to the root of the matter.

Mr. Colley

The legal profession has rather bitter experience on the question of the costs paid by the State in criminal matters. I am speaking of solicitors and counsel assigned in murder cases. There have been recent increases but the fees are still absurdly low considering the work and responsibility involved. The members of the profession are apprehensive that, in the regulations the Minister may make prescribing fees, he may to some extent be guided by those scales. I know the Minister intends to consult with the Incorporated Law Society and, I think, with the Bar Council on this question. I would ask him to consider the suggestion by Deputy O'Higgins that the Bill should provide that such fees shall be fair and reasonable. If they are not, the Minister will find that very few legal practitioners, certainly not the best ones, will be prepared to act on this panel and the scheme will lose its efficacy. If the accused person is impoverished, he is still entitled to get the best legal advice available. I think that is the principle on which the Minister is working in the Bill and he should ensure that it will be carried through.

I should like to see further details of the method by which solicitor and counsel will be assigned enshrined in the Bill and not in the regulations. Perhaps the Minister would consider whether some, at least, of the steps that will be necessary in this respect cannot be enshrined in the Bill? It is very important. The whole scheme hinges on how this operates. It is important that this House should have an opportunity of considering the machinery which the Minister will be setting up as the corner stone of the whole scheme. I realise the difficulties involved but I am rather intrigued to know how any justice or judge is to decide that a person has insufficient means and is unable to obtain legal aid. Far be it from me to suggest the introduction of a means test. I presume we are to take it that it is being left to the discretion of the justice. If that is so, is it possible that in one court a man who has a certain amount of income or a certain amount of capital will be deemed to have insufficient means and in another court a man with considerably less means will be deemed to have sufficient? If anything can be done to clarify that position it will help the whole scheme.

There is one aspect of this question of assignment which worries me and it is one of the reasons why I urge the Minister to include more details in the Bill. It is that this free legal aid scheme will not be available to habitual criminals. I can well appreciate the Minister's reason that the public does not feel it should be called upon to pay taxes for the purpose of assisting habitual criminals to get free legal aid and avoid the consequences of their acts. How is it to be decided that an accused person is not entitled to free legal aid because, to use the loose phrase, he is an habitual criminal? You can have somebody who——

Mr. Haughey

If he appears before the judge six or seven times a month, you will have a fair idea.

Mr. Colley

Will that be laid down in the regulations?

Mr. M.J. O'Higgins

Is he to be cut out because of a particular grave——

Mr. Colley

It seems to me that there is a certain element of finding the man guilty before he is tried in deciding that he is an habitual criminal. He could, for instance, have been convicted quite a number of times of a particular offence and charged with another type of offence of which he is not guilty. We know in practice that a person who is an habitual criminal is one of the first people the police will pick on, if a crime has been committed. In 99 cases out of 100, they are right in following up these people and checking on them. It happens, as a result, that these people are charged on occasion with offences they have not committed and are not guilty of the particular offence. Very often, they have not much hope of going free because of their record and because they are habitual criminals. In this case, not only will they have the difficulty which exists at present but it looks as if they will not have any opportunity of free legal aid.

I realise the Minister's difficulties in this matter. I am pointing out that there are other difficulties involved and that the Minister should give them due consideration before the next Stage of the Bill. I again congratulate the Minister not only on this Bill but also on his other effort in regard to legal reform.

Major de Valera

I do not propose to say very much on this, except to refer to a point which has been more or less dealt with already—the question of the habitual criminal who is under suspicion for a more serious crime—I would go further and say an unrelated crime. The police theory is a natural and proper one. It is a proper method of operation. If a housebreaking has been committed, they will investigate it and may find that the method of the crime points in a certain direction. They will follow up such clues. That is all very legitimate and an habitual criminal, who appears habitually on the same type of crime, should certainly be excluded from being facilitated in his course of conduct by getting free legal aid every time he is up.

On the other hand, I should imagine —I think the records will show—that there is a certain danger that certain serious crimes can be erroneously charged to a man who has a criminal record. There can be occasions when there will be a circumstantial linking of the two unrelated crimes. It can go further than that. You can have relatively trivial cases where an injustice might be worked and might work all the more easily because of the fact that it is trivial. Therefore, in the case of the habitual criminal, I should like to see a restriction, shall I say, to his speciality. In other words, such persons should not have free legal aid, if it is a crime they have been guilty of before and is in accordance with their course of conduct. Any citizen whatsoever, no matter who he may be, if he is charged with a crime, whether serious or otherwise, involving possible imprisonment, should have the full facilities of every other citizen for defence if the circumstances are such as to make that crime a unique thing in his case. The fact that a man is an habitual housebreaker should not influence in any way a charge of manslaughter. Everyone will accept that. It should not influence a conviction for a serious crime like arson or murder. Apart from serious crimes, even in relatively trivial crimes where an injustice can be done, unless the course of conduct indicates habitual crime with specific relation to the charge in question, then the man should not be denied legal aid.

I should like to raise a matter in regard to the question of refusing aid to anybody. If we are to give it at all, what do you gain by putting in this provision that habitual criminals will not get legal aid? Not very much because you will have very few cases except in one particular and that particular is on the petty district court level where it will not matter very much. The question is to find a precise and accurate form of limitation.

Let me say a word on a matter which is not in this Bill. It is no doubt important to give free legal aid. I want to take the opportunity of saying this because the opportunity may not offer itself again. It is not, in my opinion, in the case of criminal circumstances that there is really a need for providing legal assistance to the citizen at a cost that will not make it prohibitive. In criminal cases, by and large—in one type of criminal case —there is already provision. Extending that is all very well but it is becoming increasingly difficult for the citizen to enforce his legal rights, particularly what one might call his minor legal rights, whether it is against one individual, a corporation or even the State in its various manifestations, local and central. There is a question there of providing for people who are unable to undertake the risks of cases that they should take. I am convinced—most of us are— that a large number of people have been prevented from asserting their rights or from protecting themselves from unwarranted encroachments on their rights merely because of the uncertainty and terror of financial commitments.

I am not going to make the naïve suggestion that free legal aid should be extended to the civil side. The costs have gone up from the point of view of administration; court fees and other incidentals of that nature have increased. It is having a serious effect on people who wish to assert their rights, and on a very important element in our social life, our legal profession and our legal system.

As one who may claim to have a little personal knowledge of what is involved and who cannot be accused of having any particular present interest, perhaps I might be permitted to speak for the two legal professions in this matter without their knowledge or consent. We have an excellent machinery here, excellent courts and excellent practitioners. Fundamentally, we have a very good system. The only difficulty is that the cost of seeking the decision of a court is sometimes too terrorising to enable a matter to be properly determined in court. I am taking this opportunity to ask the Minister if, when he is considering this matter, he will consider the possibility of aids, whether general or specific, to persons who bona fide wish to have a matter of right or equity determined in a proper legal manner in the courts.

Some method should be thought out to make that possible where it is impossible at the moment because of the costs involved. That problem cannot be met by people simply saying that there is too much law. It might also be said that at times there is not enough law. I am not suggesting free subsidies all round but I am suggesting a realistic approach to the cost of procedures which would help more than definite subsidies. I take this opportunity to ask the Minister if he will consider this matter on a future occasion.

Mr. Sherwin

My idea of legal aid is that it should be granted in all cases. I have heard of people committing suicide because they were accused of some charge that might not have entailed a penalty of more than £5. Some people take any form of indictment as a serious matter. Even a fine of £5 or a week's imprisonment is a serious matter for many people because it is something that damages their reputation and can cause the loss of their employment.

I have a case in mind which affected me when I was quite young. It goes to show that legal advice and support are necessary in all cases. It happened when I was only six years of age. A young lad threw a squib up in the air and by chance, it went in through a window and set fire to a curtain. There were only two young lads in the street and I was one of them. There was a great hullabaloo and a woman who had some grudge against my mother accused my brother who was not in the street at all. My people were poor and did not engage a solicitor and my brother was sentenced to a month in Marlborough House. If there had been a solicitor, he would have inquired into the facts and justice would have been done but because my people were poor and I was only a child, the woman's word was taken and my brother did a month in Marlborough House.

I hold that in every case where persons have not the means to defend themselves, there should be free legal advice. It should not be confined to cases of murder or other serious charges. It should be free to all cases, irrespective of the charge, if the people concerned have not the means to engage counsel.

Mr. Haughey

I agree with the Deputies who have stated that this measure is limited and restricted. I also want to repeat what Deputy Colley has said, that it is at least a start. I do not think it is possible for us to be other than limited and restricted at this stage. One must have every sympathy with the case mentioned and the views put forward by Deputy Sherwin to the effect that for the vast majority of people, to be accused of any crime is a very serious matter. Therefore, if possible, the aid which the Bill provides should be made available as widely as possible. However, this is something new and to a large extent will be experimental in the initial stages. We have got to feel our way and see how the situation develops. The Bill is offered to the House in that spirit and in that manner. I am quite certain that every Deputy would favour extending the scope of the Bill both to criminal and civil matters, if that were possible, but we must realise in matters of this sort that our resources are limited. This is, to my mind anyway, a social service akin to other social services which go to help and assist the less well off sections of the community. This is an extension of the principle of social service into legal matters. The amount of money which we can make available in any year for all our social services is limited. Every reasonable Deputy would agree with that and we must, to the best of our ability, endeavour to distribute available resources to the best possible advantage.

The Bill is prepared in the light of that fact. We feel at this stage it is desirable we should make some of the resources at our disposal available for this particular social service and see how it will work out. If it is possible to extend it in the future we shall certainly be prepared to do that. I want to emphasise that we can only make an estimate at this stage as to what the cost will be and, in those circumstances, the Bill cannot be other than limited, as it is. I also want to point out that while it is limited in some ways, it is comprehensive in others. When this service was introduced in neighbouring jurisdictions, it was not as comprehensive as ours. We are providing free legal aid right through the system from District Court to Supreme Court. In that way it is comprehensive but I admit there are considerable restrictions in regard to cases that will qualify for legal aid. At this stage we have no alternative but to accept those restrictions.

Deputy O'Higgins made a point to the effect that in cases where the charges were not grave, where the circumstances were not exceptional, we were not giving free legal aid and, to that extent therefore, we were being unjust or unfair to a certain class or number of people. That is not quite true because I suppose in any case that comes before the courts there is need for legal aid but surely the need is greater in the case of a grave charge or a case involving exceptional circumstances so that in that regard we are providing the aid where it is needed most.

We could look on this whole situation in this way. The court has a duty to be fair to the accused—I think we can all accept that it is fair to the accused. As I said in my opening remarks, we have a very fine tradition in that regard in this country. This scheme, as I see it, is nothing more than an attempt to come to the aid of the courts and assist them in the discharge of that duty. The court's aim is to be fair to the accused. We are saying, in effect, in certain cases it is essential in order to enable the courts to discharge that obligation, to provide the accused with the necessary legal aid to assist the court. That is what we are doing. We are beginning by supplying that assistance to the courts at the point where it is most needed, in grave cases or exceptional circumstances.

Deputy O'Higgins seemed to be under the impression that it would be necessary for the individual to make his own application for a legal aid certificate. I do not think that is so. It certainly is not the intention. We shall ensure that it will not be so. It will still be true that the accused will have to apply. Nobody may come along and give him legal aid whether he wants it or not but the application can be made either by the accused in person or by a solicitor on his behalf.

Mr. M.J. O'Higgins

That is all I am anxious about but the Minister will see that the Bill refers to the applicant in person. It is only a question of making it clear.

Mr. Haughey

The House may accept that it is our intention that the application may be made by a solicitor on his behalf.

I am not a little intrigued by the suggestion that this scheme is going to be Civil Service administered. Let us look at the facts. In the first case the counsel or solicitors who operate the scheme will be assigned by the judge or justice. The list in any court will be decided on by the solicitors and barristers practising in that court because they will indicate whether or not they are prepared to have their names on the list and the function of the State in the matter will be merely to prepare the list. So that there is no effective State control in that respect. The assignment of counsel or solicitor from that list will be a matter for the judge.

The actual defence in court will be operated by counsel and solicitor and, as I see it, the only function the State will have in the matter will be to pay. The Civil Service will not enter into the scheme in any way whatever once the original regulations are prepared except to foot the Bill. In any social service that is the State's duty but certainly it is absurd for Deputies to suggest that this is a Civil Service administered scheme. It is a scheme administered by the courts and they are the correct people to administer it.

I want to say a word about the question of associating the Incorporated Law Society or the Bar Council with the scheme. Both of these bodies will be fully and completely associated with it. We have already received from both of them an assurance of co-operation and in return we have indicated to them that any advice or help or assistance they can give in either the preparation or administration of the scheme will be welcomed. I have already seen the Incorporated Law Society. We have had full and frank discussion. I have indicated to them that they are to come back and have further discussions as we progress with our preparation of the Scheme.

The same situation will apply with regard to the Bar Council. I have arranged to see the Bar Council and discuss the scheme and regulations with them and anything they have to say or suggest will be fully considered and, if possible, acted upon. I want completely to disabuse the minds of Deputies on this score. It is not possible at this stage to hand over the administration of the scheme to the Incorporated Law Society or to any outside body—I think that would never be possible—but it is certainly my aim, and I have indicated that, so far as possible, as the scheme progresses, more and more will those two bodies be brought in on its operation.

At this stage I think we must keep the scheme as it is envisaged in the Bill, namely, that the regulations and so on must be the responsibility of the State, that the Department of Justice in consultation with the Department of Finance will advise and assist to the greatest possible extent in the preparation and thereafter the scheme will, in effect, be worked by the courts.

Some Deputy said it appeared to him that it would be necessary for an individual to disclose his defence before he could qualify for aid under the scheme. That is not the intention. We propose that the prisoner should not be bound to disclose his defence as a condition of obtaining aid and I think that intention is given effect to fully in the draft which reads:

it appears to the District Court or the judge of the court before which the person is to be tried (as the case may be) that, having regard to all the circumstances of the case (including the nature of such defence (if any) as may have been or is proposed to be set up),

I think the two important words there are "if any", and I am assured that the particular phraseology of the section ensures that there will be no question of its being necessary for the accused to disclose his defence in advance. I fully agree that it would be undesirable that he should have to do so and that there should be no danger of that arising.

Deputy McGilligan indicated that the Bill would not really make any particular difference because he felt that free legal aid is already being provided fairly fully, that no one would get free legal aid now who has not been getting it up to now and that the Bill was not really of any great importance. I think that is an oversimplification of the position. There is undoubtedly a tradition in law that the services of a solicitor or barrister should be placed at the disposal of a poor person, even though he cannot afford to pay for them. That is the old tradition, but I think it is becoming less and less relevant to modern times.

Deputy Colley pointed out that solicitors labour under a very real sense of grievance because of the inadequacy of the fees in murder cases. At least they are getting some fees, however inadequate they may be, and they are presumably labouring under the sense of grievance because the fees are not what they feel they should be. Surely that is indicative of the fact that we cannot any longer expect either of the professions to provide free services to poor persons. There may have been a time in a more leisurely age when those services were provided as a matter of course on a full and adequate scale. I doubt if there ever was such a time, but there may have been. It is certainly unsafe to assume today—and my inquiries confirm me in my belief— that poor persons are getting free legal aid on a wide scale because of this old tradition at the Bar. That tradition is there and is, as I say, as a principle, loyally adhered to by the members of both professions, but nevertheless present circumstances are such that it is not sufficient any more to cope with the problem.

There is this essential difference also between a poor person receiving the gratuitous services of barristers and solicitors, because of the tradition, and the poor person receiving those services as of right and being able, in effect, to pay for them. I think that is a very important and very essential difference, and one which is in keeping with our thinking on social matters today. It would be infinitely preferable and more desirable if this type of service is to be provided in our courts that the accused should be able to avail of the services of solicitor and counsel without having to be, as it were, placed in a mendicant position.

Deputy Colley seemed, to my mind, to be unnecessarily anxious about the question of the assignment of solicitor and counsel. I want to emphasise that I am absolutely optimistic and hopeful that this scheme will be interpreted in a sensible, reasonable and realistic way by the judges and justices, barristers and solicitors, and any discussions I have had with those involved confirm me in that belief. The discussions I have had with the Incorporated Law Society were on a most reasonable and realistic basis and I have no doubt that will be the situation.

As I said, the scheme will work broadly along these lines. A list will be prepared in the courts of members of the professions who are prepared to operate the scheme, and thereafter the assignment from that list will be made by the judge or justice, having regard to the wishes of the accused. Of course the situation will normally be that if the accused indicates that he wants Mr. X from the list, the judge will automatically assign him, but we cannot possibly, from the practical point of view, leave complete and utter discretion to the accused. The whole work of the courts could be interrupted because the accused might perversely insist on having a particular member of the list who was not available, who was in some other court, or on some other circuit, or unavailable for some other reason. To attempt to provide for the wishes of the accused as to who would act for him would, without any other consideration, be futile and completely unpractical. So the suggestion made in the Bill is, to my mind, the only feasible, sensible and fair way of tackling the problem. In other words, the ultimate decision resides in the person in whom it should reside, and the person best fitted to exercise it, namely, the judge or justice, provided that so far as possible due regard is had to the wishes of the accused as to whom he should have to represent him.

Deputy Colley also indicated that he was perturbed about the question of fees. That is a reasonable matter to raise and if I can assure him with regard to it, I should like to do so. I want to tell him that when the Incorporated Law Society came to me, naturally that was one of the matters they raised. I asked the Incorporated Law Society to suggest to me fees which they would regard as adequate and suitable. Admittedly, I did say to the Incorporated Law Society, in effect: "Please do not overlook the fact that there is a tradition in law that assistance should be afforded to poor persons, and I think that tradition might operate on your minds to allow you suggest fees other than full scale fees which you would expect in other circumstances." That is as far as the discussions have gone.

We may be able to come up with a scale of fees which will be completely satisfactory from the point of view of both professions. I hope we can but we may not. I am quite certain, however, that we shall do our best and I am equally certain, from what I know of the Incorporated Law Society and the Bar Council, that if they accept that the offer and approach made by us to this problem of fees is reasonable, and that we are doing as well as we can afford in our particular circumstances, we shall have their full co-operation, even though the fees might not be as remunerative as they might like them to be.

The question of the habitual criminal was raised and again I think the approach we have to this matter is sensible. I am quite certain the majority of Deputies would recoil from a proposal that we should spend public moneys in the defence of what I call the habitual criminal. I said that in my opening remarks and I went on to say that even in the case of the habitual criminal, the person who everybody knows has decided to make a career of crime, there will be the occasional or exceptional circumstances which would make it desirable that he should have free legal aid. We propose in the scheme that in those cases, even, as I say, in the case of what I might call habitual criminals, they will be entitled in certain circumstances to receive the aid envisaged under the scheme. But it would be absurd to envisage a situation where the type of person I have in mind would be able, time after time, to receive free legal aid when everybody knew that in fact he was a career criminal.

Deputy de Valera mentioned that he would like to see the scheme extended to enable persons who wanted to affirm a right in equity. So would we all. As I said originally, every Deputy would like to see this Bill covering not just criminal but civil matters as well. That may come in the future. I certainly hope it will and that eventually we shall be able to extend this scheme to cover poor persons in civil matters and achieve a position where no person need ever be in a position of not being able to procure justice because of lack of means. As I emphasised, we must creep before we walk. We must see how the initial scheme works out and in the light of that knowledge, consider and examine whether or not we could extend it to broaden the basis of the scheme.

When Deputy de Valera was speaking, I was thinking of another approach to that problem, that is, that in civil matters, apart from the State coming in and providing the litigant's costs, a substantial contribution could be made if we could reduce the cost of litigation in any way. Deputies will appreciate in the programme for law reform on which my Department is engaged and which is set out in the White Paper published recently, there is a proposal to set up a committee to examine that very matter. The setting up of that committee is under examination at the moment and I should hope its establishment will not be too long delayed. There is a very fruitful field of endeavour there and if we could, by the establishment of that committee and its work, eventually succeed in reducing the cost of litigation we would have done a very great deal on the civil side, apart from any question of extending free legal aid to civil cases.

I shall conclude by saying that the scheme is the best we can do for the moment and I think it is a fairly good one. I have every confidence that everybody concerned will approach its administration with commonsense and with a spirit of co-operation and a desire to make it work. If that is done, I have every belief that in passing this Bill, we shall be doing something worthwhile and achieving a useful and fairly substantial social reform.

Question put and agreed to.

Committee Stage ordered for Wednesday, 28th February, 1962.