Amendments Nos. 20 and 21 are out of order.
Committee on Finance. - Criminal Justice (Legal Aid) Bill, 1961—Committee Stage (Resumed).
I move amendment No. 22:
In page 5, line 6, to delete paragraph (b) and to insert the following paragraph:
"( ) to the court itself,".
This amendment is consequential on amendment No. 17, which has already been accepted.
I should like to take the opportunity of asking the Minister to consider the possibility of approaching this in a slightly different manner. The Minister may recall there was some difference of opinion whether what he was doing was in fact covering the position. It occurred to me later if the Minister were to word it that the applicant may "cause an application to be made", or if he says "by or on behalf of the applicant", it would make it clear, without in any way calling into doubt the other Acts as the Minister fears it might.
I shall do that certainly, but I assume that if the draftsman assures me this does exactly what we want to do, that will be all right with the Deputy?
Amendment No. 24 is out of order.
I move amendment No. 25:
In subsection (1) (a), page 5, line 18, after "offence" to insert "and".
This is purely a question of drafting. It seems to me that if we do not insert the word "and" after the words "a person charged with an offence", the section may be ambiguous. The word "and" is placed at the end of subparagraph (b) and if only for conformity, as well as from the point of view of avoiding ambiguity, I think it should be inserted at the end of subparagraph (a) as well.
I do not think so. It is in accordance with normal drafting practice to put the "and" in at the end of the second last paragraph only. It reads perfectly all right as it is.
If the Minister is assured by the parliamentary draftsman that this is satisfactory I am quite prepared to accept it. It just offends my aesthetic sense.
This is a question of the difference between a full stop and a comma. The Minister uses a comma in (a) which I think makes it in order.
Amendment No. 27 is out of order.
I move amendment No. 28:—
In page 6, line 1, to delete paragraph (b) and to insert the following paragraph:
"( ) to the Supreme Court itself,".
This amendment is along the same lines as the others. It is consequential on amendment No. 17.
Amendment No. 29 is out of order.
I do not wish to delay the House going back over what we discussed the other night, but I would ask the Minister to have another look at the word "essential". It seems to me that there is danger, if it is correctly interpreted, the Bill will not operate as an Act at all. Anybody placed in the position of having to decide it was essential in the interests to justice that legal aid be given would find himself in practically every case in the position where he could not say in conscience that it was essential. I would ask the Minister to see if some other word—"necessary" or some such word—could be substituted for it.
I move amendment No. 30:
Before Section 7 to insert a new section as follows:
"For the purposes of an application for a certificate of free legal aid under the provisions of this Act, a solicitor shall have a right of audience in any court notwithstanding any provisions to the contrary contained in any other enactment or in the Rules or Orders of any Court."
This amendment proposes to provide a right of audience in any court for a solicitor for the limited purpose of an application for free legal aid. We do not know, because we have not got the regulations yet, whether the regulations to be made by the Minister will provide that the free legal aid will include the cost of an application for free legal aid, but, on the assumption that it will not include this, it seems to me that if you are dealing, as you are here, with the case of a poor man who does not want to make his application for free legal aid in person, because he has not confidence in himself, then he should not be compelled to engage counsel to make his application, as he would be in the higher courts as the position stands at the moment. If he does not make it himself, his solicitor cannot make it on his behalf; it must be counsel. Counsel is the only person who has right of audience in the higher courts.
If we leave the position as it stands, he will be compelled to engage counsel for an application for free legal aid, unless he does it himself. On the other hand, if the regulations provide that the costs of an application for free legal aid are included in the legal aid to be granted, then from the point of view of the State, we are, if we leave the position as it stands, compelling the State to pay counsel's fees in connection with an application for free legal aid in every case, although there may be some cases where this would not be necessary, if we accept this amendment. Where an application can be made by a solicitor alone and the applicant is willing to have this done, the State should get the benefit of that. That is acting on the assumption I have mentioned.
I would point out that this amendment does not close any existing source of revenue or work for barristers, nor does it preclude the engaging of counsel in legal aid applications. It merely ensures that one is not compelled to engage counsel.
I cannot accept this amendment, first of all, because it would involve such a radical departure that it would be completely unacceptable not alone to the court but to the profession of the Bar. Apart from that, I do not think it is necessary. The reason it is suggested that a solicitor should have the right of audience in the Supreme Court is apparently to avoid the expense of procuring counsel to make the application. Deputy Colley is completely overlooking the fact that the application may be made by the person himself. It is open to the accused either to apply by letter to the registrar or make the application in person.
It seems to me also that there is this practical answer to the amendment. Surely if a person is able to procure the services of a solicitor to make the application, it is reasonable to assume that that solicitor in turn would not find it impossible to procure the services of a barrister to go into the Supreme Court and make the simple application for a legal aid certificate. Deputy Colley is asking something that is — the word "outrageous" might be too strong—a radical departure from all precedent in these matters.
But there is, in fact, no precedent in these matters.
A solicitor is not allowed in the Supreme Court and we would have to upset that practice and precedent for this single purpose. I suppose the House would contemplate even doing that but, as I have said, it is not necessary.
The Minister is probably aware that there are certain circumstances in which a solicitor has the right of audience in the High Court and in circumstances somewhat analogous to the type of matter we are describing here. The solicitor has the right of audience in, for instance, matters of bankruptcy. The representations there may frequently arise because of the poor circumstances of the person who has either taken the protection of the court or has been made bankrupt. It does seem that this may be something new but I do not think there is anything outrageous in Deputy Colley's suggestion. When you are setting up completely new machinery to deal with cases where legal aid assistance is actually to be given by the State to people who are not in a position adequately to represent themselves, then I do not think there is anything outrageous in the suggestion that a solicitor should be entitled to make an application.
The Minister has an amendment down later on dealing with the question of means and that kind of thing. It seems to me that very frequently you may have a person who would, I am sure, in normal circumstances be the type of person who would qualify for this type of legal aid, who would be able to make the case properly himself. One of the factors that probably would be taken into account by the Benches in granting certificates of free legal aid may very well be a person's ability or inability to speak for himself and present his own case. Deputy Colley is worried about this kind of person who cannot coherently make an application for himself.
It may appear to the Minister to be a simple matter but I do not think it will be quite so simple. Many factors will be taken into account. One is the person's means and, secondly, there is the gravity of the offence with which he is charged. If he does not qualify on the grounds of gravity, then the court is entitled to look to exceptional circumstances which may exist. It may very well take a qualified legal practitioner to present properly to the court the question of the gravity of the offence or the exceptional circumstances.
If it is as complicated as all that, surely it would be essential to have a barrister?
No. I understand the Minister is a qualified barrister himself and as such, will appreciate that the barrister proceeds on the brief presented to him by the solicitor. Deputy Colley's suggestion has the virtue of reasonability and from the point of view of the Minister, and particularly from the point of view of his colleague, the Minister for Finance, it would also have the virtue of being a less expensive procedure than if the Minister forces the position that except in the district court, any further application must be made by counsel if the applicant himself is unable to make it. Such a procedure would make it more expensive.
I am aware of the fact that the Minister is himself a qualified barrister. I am also aware of the fact that he did not practise and I am amazed that he has absorbed so much of the reactionary outlook of his profession. It is true that as a solicitor I am interested in putting this matter forward. My profession is a very humble one compared with the other branch to which the Minister belongs but this suggestion is not put forward in an effort to improve the status of solicitors. It is put forward as some attempt towards rationalising the procedure involved here. If the Minister chooses to view it as the thin edge of the wedge, I should have hoped that he would have welcomed such a wedge. I should have thought that he would have aimed at rationalising the administration of the law and would welcome any effort to make it cheaper and simpler. If the Minister wants to view the matter from the overall point of view, this suggestion should appeal to him because it simplifies and cheapens the procedure involved.
The Minister is going a little far in saying that the amendment might possibly be described as outrageous. The only reason the Minister has given for not accepting it is that it would interfere with existing practice. At present, members of the solicitors' profession have the right of audience in limited cases in the higher courts and I think the Minister should not allow himself to be influenced too much by the outlook of the barristers' profession.
The Minister is probably the most pragmatic individual in the House and is prepared to try anything which he thought justifiable for the common good. If it is expense that Deputy Colley is worried about, it is a simple thing for the accused himself to make a simple application to the Supreme Court by letter to the Registrar of that court as set out in the Bill. There need be nothing complicated about that application. We propose to provide a simple form whereby the applicant can set out his means and he can attach that form to the letter to the Registrar. He can do that without the assistance of solicitor or counsel. If it is a complicated case and if the accused is in a position to secure a solicitor, there will be no difficulty in that solicitor getting counsel to make the application for him.
The point is that a solicitor should have the right to appear in the Supreme Court and I think that a solicitor should have such a right. Any individual should have that right. I am satisfied that there is a racket in the legal profession by which one member of it calls in his pals so that they can get a bit of what is going. I have the experience of a solicitor making a certain application and he won his case. He asked for costs and I appealed against the costs and they were reduced by half. The Taxing Master agreed that there was no need for junior counsel in the case.
That does not appear to arise on the amendment before the House.
Perhaps it does not.
Then it is not relevant and the Deputy may not deal with it.
There is a proposal by Deputy Colley that a solicitor should have the right to go to any court. I agree with that. It would not only save expense but there is no doubt that there is no need for the appearance of a barrister. Any man who has any knowledge of the law should be able to make his application to the Supreme Court.
It seems to me that we may have to have another look at the word "expenses" on the Report Stage. It might be possible to argue that expenses could be regarded as not including costs. I may be expanding the phraseology of that section on Report Stage.
In which event, I hope the Minister will have another look at amendment No. 1 which was ruled out of order.
It may also be necessary to relate Section 7 to Section 9, in relation to the determination of expenses or costs in the regulations being prepared under Section 9. I shall do that on Report Stage.
Amendments Nos. 32 and 33 are cognate to amendment No. 31 and could be discussed together.
I move amendment No. 31:
To delete subsection (1) and substitute the following subsection:
"(1) Where a legal aid (trial on indictment) certificate is granted in respect of a person, the Court of Criminal Appeal shall in exercising jurisdiction under section 34 of the Courts of Justice Act, 1924, or section 5 of the Courts of Justice Act, 1928, to award costs, order to be deducted from such costs so awarded any costs paid or payable under such certificate."
It is quite a simple matter and I hope the Minister will accept it at least in principle, if not in the drafting. It is a point I mentioned on Second Reading, namely, that there are circumstances at the moment where an accused person who is acquitted is entitled to full indemnity in respect of costs and he is so awarded by the trial judge.
However, under the wording of Section 8, for the sake of avoiding double payment—the Minister set this out in an Explanatory Memorandum — the judge is precluded, where a free legal aid certificate is given, from awarding the costs under the Act of 1924 and the Act of 1928. My suggestion is that that is not fair and that in such circumstances it would be quite adequate to avoid any danger of double payment if the Minister provided that there should be a set-off of one set of costs as against the other. It was for the purpose of pin-pointing that that I put down this amendment. I urge the Minister to consider the point.
Amendment No. 32 is virtually the same in effect as amendment No. 31. The only practical difference is that under amendment No. 32 the State might offset the costs in question without any court order. Therefore, if, by any chance, as sometimes happens, the Court of Criminal Appeal omitted to include an order for deduction or for offsetting costs, then the expense and trouble involved in having the order amended would be avoided under amendment No. 32, which might appeal to the Minister if he accepts the principle that the State can offset these costs without reference to the court or anywhere else.
I urge the Minister to accept the principle involved in this unless he can assure us that the costs awarded under the free legal aid certificate will be on the same scale as those already allowed for in the cases mentioned here in respect of the Court of Criminal Appeal awarding costs. We do not anticipate that they will be, but, if they are not, then it is inaccurate to say that this section is designed to prevent double payment of costs. I think that was overlooked.
If the Minister would be prepared to rectify the situation on the lines of either of these amendments, I think both Deputy O'Higgins and myself would be quite satisfied with the situation.
The Minister does not accept the principle enshrined in either of these two amendments. Section 8 is specifically designed to do what it says. It is our intention that where a person proceeds under this scheme and gets free legal aid under the Bill he should stick, as it were, to that line of country. If he is a poor person and avails himself of the provisions of the Bill and gets free legal aid then he should not, at a certain stage, be able, as it were, to get back into a different category and procure what people seem to assume will be a more favourable scale of costs.
To some extent the amendments are based on the assumption that the scale of fees which will be paid under these free legal aid provisions will not be satisfactory. I am hoping they will be satisfactory. I am hoping they will be acceptable to both professions. They may not be—as we have discussed—the full professional fees which a solicitor or counsel would procure in the normal way from, if you like, paying clients.
We hope that whatever scale we ultimately settle upon as a result of our discussions with both professions will be accepted. That being so, I think that when an accused person and his legal advisers set out, so to speak, on the free legal aid track, they should stick to it and not expect a more favourable scale at a later stage.
I do not want to go on arguing: the Minister made his point quite clear. I think he is wrong. I think he is using this Bill in a way in which it should not be used and which certainly seems to me to be contrary to the principles and spirit in which it was introduced. Now, under Section 8, he will use the Bill for the purpose of saving money in particular cases where, in normal circumstances, if the Bill did not exist, the State would have to pay the cost. Now, in those cases where free legal aid is granted, the State will not have to pay the full costs which, in ordinary circumstances, it would have to pay.
Deputy O'Higgins is wrong to this extent, I think. The cases to which he referred might not have got as far as the Court of Criminal Appeal, were it not for the free legal aid provisions. In that respect, we are not saving money. All the existing cases which go to the Court of Criminal Appeal and avail of the provisions of Section 34 of the Courts of Justice Act, 1934, or Section 5 of the Courts of Justice Act, 1928, will still go of their own volition, as it were, to the Court of Criminal Appeal. But side by side with them, will now go new cases——
Or cases in which, in the interests of justice, free legal aid should be given.
We think all these cases should remain in the free legal aid category to the end.
I think the Minister is perhaps under two misapprehensions here. First of all, he thinks both these amendments are based on the assumption that the scale of costs to be awarded under this free legal aid scheme will be unsatisfactory. They are not based on that assumption. They are based on the assumption he mentioned, that they will be acceptable to the profession.
I think Deputy O'Higgins and myself are both sufficiently realistic to know that that probably will mean that they will be less than the full professional costs which normally would be payable. We recognise that fact.
We are trying to ensure that where, under the present system, without this Bill at all, a person—whether he be a pauper or a millionaire—will get, in certain circumstances, costs awarded by the Court of Criminal Appeal against the State, that right will not be taken away. I think the Minister is approaching this in the wrong way when he says that a person who starts off on the free legal aid track should stick to it. It seems to me that as far as possible our approach should be that, where a person obtains free legal aid, having obtained the certificate, he should then go on in the same way as any other person who pays his own way; that he should not carry a stigma because he is getting free legal aid. He should not be under any obligation to the State or anybody else.
I think this justifies the line I was urging before, namely, that the whole application for free legal aid should be kept separate on the file. It is an administrative function. A person who gets free legal aid should, from there on, be treated as far as possible in the same way as somebody paying his own way. To attempt now to penalise somebody—which is what we are doing—who gets free legal aid, by not allowing him to get the costs which he would get if he were not getting free legal aid, is, I submit——
This is all coming out of the pockets of the taxpayers, of course.
It is. The Minister is under a misapprehension in thinking that this means that the cases involved here would never have gone to the Court of Criminal Appeal before now. He referred to the fact that he was aware that the practice in the profession has been that where somebody appeared to have a reasonable case, he managed to have it brought on without money, because of the traditions of the profession. He said there were various reasons why that was unsatisfactory but was recognised as existing. In other words, at present if somebody has a reasonably good case and has no money, his case will be brought anyway.
Therefore, I think the Minister is mistaken if he thinks that, as a result of free legal aid, there will be cases going to the Court of Criminal Appeal involving costly procedure that otherwise would not be going on appeal. That may be so in some cases but it seems reasonable to assume that the vast bulk of cases will go forward whether there is free legal aid or not. We are dealing with cases which, if they are going to succeed, will involve costs against the State in some degree. For that reason, I think the Minister is under a misapprehension and that in his approach to this, he is, in fact, penalising somebody because he is getting free legal aid. He is not getting the same rights as a person not getting free legal aid.
I move amendment No. 34:
In page 6, before section 9, to insert the following section:
"(1) Before a person is granted a legal aid certificate he may be required by the court or judge, as the case may be, granting the certificate to furnish a written statement in such form as may be prescribed by the Minister by regulations under section 9 of this Act about matters relevant for determining whether his means are insufficient to enable him to obtain legal aid.
(2) In this and in the next following section `legal aid certificate' means a legal aid (District Court) certificate, a legal aid (trial on indictment) certificate, a legal aid (appeal) certificate, a legal aid (case stated) certificate or a legal aid (Supreme Court) certificate."
The purpose of the amendment is to insert a new section before Section 9 and the object of the new section is partly to facilitate the court or judge in coming to a decision as to whether a prisoner's means are insufficient to enable him to afford legal aid and partly to facilitate the prosecution if it turns out later that the applicant has made a false or misleading statement as a result of which he appeals. I want to assure the House that it is not intended there should be a means test as such. It will still be exclusively a matter for the court to decide whether the applicant's means are insufficient. The form of the written statement which the applicant may be required to furnish to the court will be prescribed by the Minister by regulation. It is really designed to show the income of the applicant and his various commitments. The general intention is that this will be a simple form requiring a minimum amount of information to enable the court to decide whether or not his means are insufficient.
The Minister has assured us there will not be a means test but, of course, there will be a means test. If the Minister himself ever had occasion to go to court I am sure there would not be free legal aid for him. In any case, there will be a means test. Can the Minister assure us that it will not be rigorously applied as it has been in respect of other types of State assistance? These are not similar to the type of State assistance being given here but we have had examples in recent years of very strict means tests in respect of health——
The essence of a means test is that you prescribe an income. That will not be done here at all.
There is no income prescribed?
But we have an example of that under the Health Act where no income is prescribed. It is not even mentioned. It is purely at the discretion, in these cases, of the county manager. Here, it will be somebody else.
I should like the Minister to make clear that it will be the income of the individual applying for legal aid and that regard will not be had to the household or family income. If the latter is to be the case the Minister should tell us now. Will it be the income of the individual or the income of the household, parents, brothers and sisters and so on? That is the way it applies in the case of health which is much more important to the masses of the people than what will be affected under this measure. If the court is to decide who will get free legal aid, I think the Minister must give some help or advice and that he will have to tell the court whether it is the income of the individual or the household. If we are to interpret strictly the amendment which the Minister has here it means—it refers to "his income"—the income of the individual. But I am afraid the same sort of phraseology has been used in the Health Act of 1953 but despite that those who determine means usually, perhaps, I should say invariably, take into account the means not only of the individual who makes the application for a medical card but of the household. This Bill will be absolutely useless unless the Minister indicates to the House now, and in the legislation, whose means are to be taken into account, if it is the applicant's exclusively, those with whom he lives, the household or the immediate relatives.
When we discussed this Bill previously, I actually raised the question of means and I agree with Deputy Corish that it is the practice, no matter what form of assistance is sought—whether unemployment assistance or free boots or anything else—to assess the means of the family. I suspect this will be the procedure here also as the Minister is not disclosing it. He says the Minister will make regulations. We are actually being asked to buy a pig in a sack as we do not know what the regulations will be. The Minister should say now if the means of everybody else in the household will be taken into consideration. I suspect that will be the case.
Why does the Deputy suspect that?
Because that is the position with every other form of assistance given by the State. The means of every other person in the dwelling is assessed. Unless we get it in black and white now, how are we to know what the Bill means? Let us have it out. It will mean that there will be victims. We know families, and it is a case of everyone for himself. If some member of the family is asked to hand out a couple of pounds, he will tell the unfortunate relation or member of the family to jump in the lake. That is what will happen if the means of the family is going to be the issue on which the application will be decided.
We should have an indication from the Minister of what he means. That raises another matter that, perhaps, is not relevant on this Bill. This is like the question of costs. In any action, if there are costs, you are examined and I think it is most unfair that a person's life-savings should be taken away from him just because of the costs of some little action taken to get justice. Suppose we are dealing with an individual and it was found the individual had £20 in the bank, his savings over a number of years, would the whole £20 be assessed or only part of it? Would he have to pauperise himself completely? I want an answer to these questions.
I appreciate the difficulties of Deputy Corish and Deputy Sherwin but I think the Minister has been rather courageous in his approach to this question of means here. He is leaving it entirely to the discretion of the justices or the judges. For a Minister of State to do that requires a certain amount of courage because it means he cannot assess what this will cost. It may be that under the scheme we shall find that in one part of the country a person with a very considerable income can still get free legal aid and in another part of the country, a person may be a pauper and not get it because of a difference of approach by justices. However, on balance, it is wise to leave the matter as it is and have another go at it, if it does not work properly.
Deputy Corish should realise that what he is asking the Minister to do is to introduce a means test. If any proviso is put in as to what the Minister should apply, it is a means test. The alternative to that is what the Minister is doing and we should commend him for taking that approach.
I would like to know what the Minister is doing. We do not know what his approach is yet.
I do not know why Deputies should look a gift horse in the mouth or impute bad motives to my innocent mind. This Bill is as clear and explicit as it can possibly be. We are leaving it entirely to the discretion of the judge as to whether or not free legal aid should be granted. We could have brought in all sorts of provisos about satisfying the Minister for Finance, the Comptroller and Auditor General, or something of that nature. We have not and it is not our intention in the Bill to fetter the judge in this regard. I would visualise that as often as not, the judge would not even ask for this form. He would put a few questions to the accused and on the basis of the information elicited, decide whether or not to give free legal aid.
If Deputies want a specific assurance in this regard from me, I am prepared to give it, but I do it reluctantly because it is intruding on the principle of leaving the judge completely free to decide these things on their merits. I do not think anybody else's income or means, apart from that of the accused, should be taken into account in this regard and it is not my intention that it should.
Can I quote the Minister to the Minister for Social Welfare?
Is the Deputy not even satisfied with that?
Yes. He wants the Minister for Social Welfare to take an example.
I can quote the Minister——
He can quote me to anybody he likes. I do not think any other person's means should be taken into account but again the matter will be left entirely to the discretion of the judge or justice.
The Minister would prescribe a form in which the statement is to be made? If the Minister has a question or two down there in relation to other people's means, the judge will have to take note of that?
The form will be purely a mechanic whereby the judge will be able to get certain basic information about the accused's finances. After that, the matter is entirely left to the discretion of the court. As I said, it is not my intention that anybody's income or means should be taken into account except that of the accused.
We must get the Dáil reports and quote the Minister in other cases.
Deputy Colley may have misinterpreted what Deputy Sherwin and I said in regard to examination of one's means. We do not want it to be calculated in pounds, shillings and pence, but I think Deputy Colley will appreciate what is in the Health Act.
This has nothing to do with the the Health Act.
I know it has nothing to do with the Health Act but it has something to do with means. The Minister has answered the question we put to him and that satisfies us.
Deputies should be gracious about it.
It is not that we are suspicious. We wanted clarification and the Minister has just given it to us. The Minister mentions in his amendment that means are to be tested. Therefore, there is a means test but we merely want to make sure the means test will be applied to the person concerned and not to his household. The Minister has said, in his opinion, it should be applied to the accused only. That satisfies me. Thank you—is that gracious enough?
I move amendment No. 35:
In page 6, to delete subsections (1) and (2) and to insert the following subsections:
"(1) The Minister may make regulations for carrying this Act into effect and the regulations may, in particular, prescribe—
(a) the form of legal aid certificates,
(b) the rates or scales of payment of any fees, costs or other expenses payable out of moneys provided by the Oireachtas pursuant to such certificates,
(c) the manner in which solicitors and counsel are to be assigned pursuant to such certificates.
(2) Regulations under this section in relation to the matters specified in paragraph (b) of subsection (1) of this section shall not be made without the consent of the Minister for Finance."
Amendments Nos. 36 and 37 may be discussed with amendment No. 35, as well as Deputy Colley's amendment to amendment No. 35.
The object of amendment No. 35 is to give effect to the suggestion which was made by Deputy Michael O'Higgins in amendments Nos. 36 and 37, that the Minister for Finance will be brought in only on the aspect of the regulations which really concerns him.
The Minister's amendment does cover what I have in mind in relation to amendments Nos. 36 and 37.
I move amendment No. 1 to amendment No. 35:
In subsection (1) (c), to add "having regard to the principle that a person in respect of whom any such certificate may be granted shall be entitled to choose the solicitor and (where applicable) counsel to be assigned to him subject to such solicitor and (where applicable) counsel being available and willing to act."
I am endeavouring to ensure that the accused person can, subject to the limitations set out in the amendment, select his own solicitor and counsel. I regard this as being of vital importance to the Bill. The provision as it stands could do great harm later. The principle on which I argue this is that the person who obtains a legal aid certificate should as far as possible be put into the same position as somebody who is paying his own way. One of the essential rights of a person who is paying his own way as a litigant is that he selects his own solicitor and, if he wants to, his own counsel.
If he is available.
That is what is provided in this amendment, that a person who gets a free legal aid certificate will select his own solicitor and counsel, if they are available and willing to act. This right should not be denied to a legally-aided person and if we deny it to him, we are imposing some kind of restriction or stigma on him. We are saying he is not capable of selecting his own. As the provision stands, the position would be that the accused would indicate his wishes, the judge would decide whom he was going to assign and in doing so, would take into account the wishes expressed by the accused. That is all very well where he assigns the people whom the accused wants but in the case where the judge assigns somebody the accused does not want, that is where we get into difficulties.
If the judge assigns, say, solicitor and counsel A, accused having wanted solicitor and counsel B and this judge, as the Bill stands, goes on to conduct the trial and convicts the accused, it is almost inevitable that the accused and maybe other people will feel that he has not got a fair trial. I would urge the Minister to remember in all his dealings with this Bill the cliché that it is very important that justice must not only be done but must be seen to be done. I believe that, unless this principle is accepted, justice will not be seen to be done.
I knew somebody would say that sooner or later.
Inevitably. We may as well face realities. Some judges dislike certain solicitors and certain counsel. That being so, it is possible that such judges might refuse to assign certain solicitors and barristers, for reasons they consider good ones, although those concerned might be the very people the accused required. It could be argued that the judge would know better than the accused which solicitor or counsel would be best in the particular type of case, but it seems to me that the advantages involved in that are far outweighed by the disadvantages of taking away from a legally-aided accused the right to select his own solicitor and counsel, a right which every other accused has. I strongly urge the Minister to accept the principle involved here. From his point of view nothing more is involved than a question of mere administration. On the other side, however, a more important principle is involved.
I agree fully with both the amendment and the views expressed on it by Deputy Colley. The case was made on Second Reading, and I think accepted by everyone, that this Bill when it becomes law simply will not function, or cannot function, without the fullest co-operation of both branches of the legal profession. It seems to me entirely wrong that a situation could be allowed to develop—I do not suggest it is intended by the Minister that it should develop—in which people would be forced to accept representages tion from either solicitors or barristers whom they did not want. If this Bill is to work the person who is accused, and who has got a free legal aid certificate, must be entitled to choose from a panel of solicitors and barristers those whom he wants to represent him. If that is not done this Bill will not work. I think Deputy Colley's amendment goes to the very root of the Bill. It is a matter of principle, and the Minister should accept it.
The Minister may say that under Section 9, or under his amendment No. 35, there is nothing to preclude an accused choosing from a panel of solicitors and counsel. It may be true that he is not specifically precluded, but what the Minister is doing is reserving to himself the right to make regulations governing the manner in which solicitors and barristers will be assigned. The whole crux of the matter lies in the words "the manner in which". The Minister probably intends that phrase to cover simply the administrative machinery, and the court will make the actual assignment. But that does not go far enough. The court should assign a solicitor or barrister chosen from a panel of solicitors and barristers prepared to work this Act, and chosen by the accused.
I should like to express an opinion. I agree the accused should have the right to make a choice. There is always the danger that the court may have their own pals. Every judge is, after all, a political appointee and he may choose a certain member of the profession, and continue to choose him in order to put jobs in his way. There is as much difference between chalk and cheese as there is between one solicitor and another solicitor and one barrister and another barrister. The person appointed could be a dud. If the accused picks a dud, that is his own responsibility. It is for him to pick whoever is, in his opinion, the best man. The Minister may be concerned about costs. He may consider that leaving it in the hands of the accused might be more costly as against certain people functioning in a permanent manner.
No. The only thing involved is the practical working of the scheme.
I know, but at the same time the accused might not have any faith in the person assigned. If the person assigned were getting regular assignments he might not take much interest whereas the man selected by the accused would do his best. The competitive spirit would enter into the picture. The more permanent assignment might result in the solicitor or counsel doing the job in a sort of formal way. The accused is the person who should make the choice.
All this is, of course, sheer sophistry. Talking about this as a principle going to the root of the administration of the Bill is, to put it colloquially, all my eye and Betty Martin. This provision is for no other purpose than to make the Bill workable. Now, according to Deputy Colley's amendment it would appear that the accused should be entitled not alone to nominate a solicitor but, going even further than that, should be allowed to nominate his own counsel. The normal practice is for the solicitor to nominate or select counsel.
Under Deputy Colley's amendment, the accused would not alone choose his solicitor but he would also nominate counsel.
The Minister must not ride off with the idea that it is the solicitor's right to nominate counsel.
It is not his right, but it is the normal practice and procedure.
Very frequently, clients choose their own counsel. They are entitled to.
It is a very brave man who would have the temerity to impugn his solicitor's judgment as to the counsel he selects.
The Minister should really try to learn something about the practice of the law.
The solicitor knows what counsel are good at what and, from that point of view, he makes his selection on behalf of his client. It might happen occasionally that a particularly strong-willed client would overrule his solicitor's selection, but that would not happen very often. Certainly we cannot contemplate that here. Whatever merit there might be in the suggestion that the client should have the right to nominate his solicitor, we could not possibly contemplate, from a practical point of view, his having the right to nominate his counsel; indeed, the counsel he might select might not be a person of whom his solicitor would approve at all. That would be a ridiculous situation.
First of all, let us consider the fact that we are providing that the court will set up a panel of solicitors. The accused's right of selection is limited straight away in that regard. He can go only to the panel. If Deputy Colley's principle were followed, he should be entitled to pick any solicitor in the country. We could not confine his selection to a panel.
That is not what the amendment says.
If the principle Deputy Colley advocates is right, and we accept it, then the whole basis and machinery of justice will suffer. According to Deputy Colley, if the accused has not the right, without regard to circumstances or anything else, to select exactly whom he wants to defend him, there will be injustice. If there is any limitation of choice, he will be dissatisfied, and justice will not be done. Then the whole scheme will fall to the ground. That is ridiculous.
The person who is being ridiculous is not the Minister's colleague but the Minister.
Recalcitrant accused could make the whole scheme unworkable by insisting on this counsel or that counsel, or this solicitor or that solicitor. The judge will have regard to the wishes of the accused. The judge will make the nomination having regard to whatever preference the accused expresses. That is the only way in which the scheme can be made to work. I will not accept the contention that judges will be prejudiced or have a preference for certain solicitors or barristers. I will not accept that judges will act perversely. We could not possibly legislate on that basis. We must say to ourselves that our courts are the institutions we intended them to be, that they work properly and that we are leaving this matter to their discretion. I am quite satisfied it will work perfectly well and that there is no question of principle involved.
The Minister may think he knows something about this Bill, but he certainly has shown clearly that he knows nothing whatever about the practical administration of justice.
We will take that as read.
No solicitor of any standing or any sense ever dreams of retaining counsel, except in an emergency, without first consulting with his client as to whether the counsel whom he has in mind is the appropriate or proper person. One does not like when speaking here to introduce one's own experience, but it is a fact that in this regard it is a matter about which I have a little experience. No one in my office has ever under any circumstances retained a counsel where there was a period of time to see the client without first saying to the client: "Mr. So-and-So is the proper counsel for this case. Do you wish us to retain him or have you got anyone of your own choice?"
And in how many cases does the client disagree?
This young Minister thinks he knows everything. Quite frequently the client tells us "No, I do not want Mr. So-and-So. I want Mr. So-and-So, who happens to be a friend of mine." It often happens, for some of us, perhaps, too often, that we are forced by the client to retain a person with whom we have no normal connections. I am not in any way reflecting on the counsel as incompetent when I say we do not want to retain that counsel. It is far easier for the solicitor to work with somebody whom he knows.
Or is of the right political colour.
The right to make the selection is the client's right and the solicitor has absolutely no authority whatever to override that right. If he does not like to retain the counsel whom the client nominates, his right is to withdraw completely. In certain circumstances, I can see a solicitor saying: "I will not retain Mr. So-and-So; I will withdraw from the case." That is a principle which is an essential part of the administration of justice for a person who pays. The whole point made by Deputy Colley, and I agree with him, is that, once a certificate for free legal aid has been given, the person to whom it is given should be just as free as the person who is going to pay out of his own pocket.
Except that there is a panel, first of all.
I shall come to that. There would be another way of doing it without the panel at all. I can see difficulties of administration in relation to it, but there would be another way. One way is that the certificate would be such that the accused person would be entitled to bring that certificate to any solicitor and that the certificate, when presented, would be the proper authority for payment of costs, according to the recognised panel scale, shall we say.
Whether it is done one way or the other, there is no justification whatever to suggest that the opposition to Deputy Colley's amendment arises because of the inclusion of counsel. Let us go on from that. Having thrown aside the Minister's deliberate red herring to cover up a point he did not want to argue, you have got a panel of solicitors, and there is no reason why one should not leave to the accused the choice of what person he goes to on that panel. If a person on the panel is ill, for example, obviously he will not be available to take the assignment. There is not any possible method by which what the Minister is pleased to call the "recalcitrant accused" can avoid or hold up justice.
I heard another Minister saying here, sitting in the seat in which the present Minister sits, that one of the fundamental principles of our law is that a person is innocent until he is proved guilty. What Deputy Haughey, as Minister for Justice, is now trying to suggest is that a person, because he is accused, because he is recalcitrant, should not get the proper rights the ordinary citizen gets. I disagree entirely, categorically and fundamentally with that. It is a principle which I am extremely grateful to Deputy Colley for having given us an opportunity to ventilate in this House.
An accused person says: "I want Mr. X on the panel" and is told: "No, I will not give you Mr. X but will give you Mr. Y." I am not saying that is done for capricious reasons but for reasons which the justice may think good and proper. Mr. Y then comes in and deals with the case. The man is convicted. Nothing that anybody can say, certainly nothing the Minister for Justice can say, will ever persuade that man that he was not unfairly convicted and that if he had been given the solicitor of his choice that solicitor would have had him acquitted, the solicitor of his choice who had already indicated to the court he was properly available to deal with panel cases of that type.
There is not any possible reason why the theory running through this amendment cannot be accepted. I shall not say categorically at all that the exact wording of this amendment is such that it carries into full drafting effect the principle involved. That principle cannot be gainsaid. It is a principle the Minister will find every reputable lawyer in the country will be whole-heartedly and absolutely behind.
I should like to say, first, that the exposition of the relationship between the client, solicitor and counsel given by Deputy Sweetman is absolutely 100 per cent. correct. I want to assure the Minister that is the position.
I am grateful for the homily.
I want to tell the Minister that I consider the argument he put forward, in which he alleged that the principle argued by me was ridiculous was, in fact, ridiculous on his part. If I understood him correctly, he said I had argued that the right of an accused to select his solicitor and counsel should be absolutely unfettered. He pointed out that this could lead to an absolutely ridiculous situation. With due deference to the Minister, I suggest this was a debating trick on his part. It would be easily possible to argue on that line that somebody should have the right to have Dan O'Connell or John Philpott Curran acting for him and, because he could not have him, he was not going to put up with what was happening. Obviously, it was implied in the argument, in fact, more than implied, because it is set out in the amendment that where such solicitors are "available and are willing to act..."
That was not the principle of the case.
Does the Minister suggest that I should have enunciated the principle by saying "Of course, I am excluding persons dead, persons not yet born or persons unwilling to act"? The argument was clear and the amendment was clear. All that is required here is that where this panel has been drawn up of people willing to act, the accused should have the right to choose from that panel. It is possible that the accused would choose from that panel a person who might be sick or unable to take the case for one reason or another. I would not object if the Minister wanted to re-draft this to provide that in such circumstances the accused could not hold up his trial for ever. That is the only argument the Minister advanced, that a recalcitrant accused might hold up the proceedings of the court. If the Minister is prepared to accept the amendment, it is not beyond the wit of the Parliamentary Draftsman or himself to overcome this difficulty. The principle involved is extremely important from the Minister's point of view and the administration of the Bill. There would be no real difficulty there at all.
We are accepting the Minister's amendment as amended.
What is being put?
The amendment to the amendment should be disposed of first.
That is amendment 1 to amendment 35.
I am not accepting it.
Amendment to amendment withdrawn?
It is withdrawn with great reluctance.
With respect, the Deputy has got to get the permission of the House to withdraw it.
I had to get permission earlier and——
I will give the Deputy permission willingly but I am not going to facilitate the obscurantist views of the Minister. We can put it down on Report. It will save Deputy Colley embarrassment. We shall put it down on this side the next time.
When we come to Report Stage, I hope the Minister will have it down himself.
I move amendment No. 38:
Before subsection (3) to insert a new subsection as follows:
"( ) Before making regulations under this section in relation to any of the matters provided in subsection (2) of this section the Minister shall consult with the Council of the Incorporated Law Society of Ireland and the General Council of the Bar in Ireland."
The purpose of this amendment is to provide that when the Minister is framing his regulations he will consult with the Council of the Incorporated Law Society of Ireland and the General Council of the Bar in Ireland. I am satisfied that the Minister intends doing this. It is very probable he has already done so but these regulations are liable to be changed from time to time. There will be persons other than the present Minister presiding over that Department and the whole success of this Bill, when it becomes an Act, as I said more than once already, will depend entirely on the co-operation of both branches of the legal profession. For that reason I want it written into the Act that when regulations are being made by the Minister with regard to any of the matters which are referred to in subsection (2) of Section 9, as it originally stood at the time my amendment was put down, the Minister will consult with the Incorporated Law Society on the one hand and the Bar Council on the other.
The particular matters about which I want this consultation to take place are the form of the legal aid certificates, the rates and scales of pay, and the manner in which counsel and the solicitors will be assigned. Deputy Colley moved an amendment regarding the free choice by accused persons of their solicitor and counsel. He was quite right and the arguments he put up were quite right but I would be less worried about that particular amendment of Deputy Colley being rejected by the Minister, if the Minister would accept the principle of this amendment which would require him to consult with the Incorporated Law Society and with the body controlling the barristers' profession before he made regulations regarding the manner in which counsel and solicitors would be assigned.
I do not think this amendment is necessary. In fact, as the Deputy surmises, I have consulted with both the Incorporated Law Society and the Council of the Bar in Ireland. It is my intention to meet them again and to prepare the regulations in the fullest possible co-operation with both bodies and to procure their assistance, help and guidance to the greatest possible extent. In view of the realities of the situation, that we are in consultation with these bodies, the amendment could very well be withdrawn.
Surely the Minister sees that there is something odd about a free legal aid scheme being prepared without reference anywhere in the Bill to either branches of the legal profession being consulted? They are not being tied up in any way with this scheme which, as I say, depends entirely on them and their co-operation for its success. I would prefer, as I made it clear on Second Reading, that the entire administration of this scheme be left to the legal profession.
That may come in time.
I hope it will come in time. Certainly I do not think it is asking too much of the Minister or the House that, when regulations are being made under this particular section, the Minister should be required by the Act to consult both.
There is this about it, if we make it a statutory requirement I think it takes from the good of the situation. The relations between the Minister for Justice for the time being and these bodies should be such that it would be understood in matters of this sort that consultation would be a normal and natural process, and I think that is the right way to have it. I feel something would be lost if the Minister consulted these bodies simply because he had to rather than, as we do at the moment, consult regularly from time to time about all sorts of matters.
There may be an argument for what the Minister says, that it would lose something by putting it in the actual wording of the scheme. I do not agree with him on that. At least I can see that it is possible for people to have two different points of view. That I can understand, but I feel the position must be clear in practice and beyond question that regulations will not be made without proper consultation with both branches of the legal profession. By proper consultation I mean consultation in an atmosphere of give and take and not merely the fulfilment of a legal obligation in that respect by saying "Here is what I am going to do, say what you like but I am still going to do it." If it is not going to be done on the word basis, before the regulations are being made, it is not going to be worth doing. As I say, I would prefer it in the Bill. It would be better in the Bill but at the same time if the Minister makes it clear that he is not speaking as the present occupant of the position but is speaking, as it were, as the corporate soul, and that it is going to be always the practice that whoever is Minister for Justice will consult with both branches of the profession before regulations of any sort are introduced in an effort to achieve a harmonious result, then with some reluctance, I would be prepared to accept that.
I may say that I shall probably be the Minister for Justice in this country for a very long time to come but, even then, in so far as I can commit the establishment to this process, I shall willingly do so.
I shall not say what I was going to say.
I move amendment No. 40:
In page 7, subsection (1), lines 8 to 16, to delete all words from and including "and—" to the end of the subsection and to insert "and shall be liable on summary conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding six months or to both the fine and the imprisonment."
The purpose of this amendment is to delete paragraph (a) of subsection (1) of Section 10 which provides that, on conviction on indictment, a person shall be liable to a fine not exceeding £100 or to imprisonment for a term not exceeding six months, or both. Having reconsidered the matter, it seems to me that this is the type of offence that ought to be dealt with summarily. When a district justice has power to impose a sentence of up to six months, it seems to me that it would be unreasonable to send for trial on indictment when the maximum penalty of imprisonment is only six months. This amendment makes the offence of obtaining free legal aid by false representation subject to a penalty of £100 or six months' imprisonment, or both.
I move amendment No. 41:
In page 7, to delete subsection (2) and to substitute the following subsection:
"(2) Upon conviction of a person of an offence under this section, the court by which the person is convicted may, if in the circumstances of the case the court so thinks fit, order the person to pay to the Minister the whole or part (as the court considers appropriate) of any sum paid under section 7 of this Act in respect of the free legal aid in relation to which the offence was committed, and any sum paid to the Minister pursuant to this section shall be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance."
This amendment proposes a fresh subsection for the existing subsection (2) of Section 10 and is almost completely consequential on the last amendment. In addition, the words "in addition to imposing the penalties provided for in subsection (1) of this section" are being deleted as it might be argued that they implied that the court, when convicting under subsection (1), was bound to impose a fine and imprisonment in every case and was not free to apply the Probation Act.
Will a person be entitled to free legal aid to defend himself against such a charge?
I should not like to give an answer to that one.
I move amendment No. 42:—
In page 7, lines 28 and 29, to delete "the 1st day of April, 1962" and insert "such day as the Minister may appoint by order."
The Act was originally intended to come into force on 1st April. I am not suggesting that the debate has not been entirely constructive and useful but we are making such slow progress that I think it better to play safe and bring the Act into operation by order.
I think it reasonable that the date should be altered but I take it the Minister will be able to assure the House that the Act will be brought into operation as soon as possible after it is passed?