Dáil Éireann debate -
Tuesday, 5 Nov 1974

Vol. 275 No. 6

Private Members' Business. - Free Legal Aid: Motion (Resumed).

Debate resumed on the following motion:

That Dáil Éireann calls on the Government to introduce a comprehensive scheme of free legal aid in civil and criminal matters.

—(Deputy Haughey.)

Mr. Andrews

The main theme of the argument on the last occasion was the difficulty, apparently, the Minister has in introducing a civil legal aid scheme and also the disparity that exists in the whole area of legal aid in criminal cases. I should like to remind the House that in the Official Report of 12th February, 1974, column 512, during the Minister's introductory speech on the Estimate for his Department he stated:

I attach great importance to this law reform programme and the implementation of it will proceed with all possible speed, subject to the limitation that the expert persons needed to translate proposals into legislation are thinner on the ground than I would like and this perhaps is the first problem to be overcome.

The Minister has collected on a number of committees quite a group of people who are willing to give their time on a voluntary basis, engaging themselves in the specific area of law reform with which the Minister has charged them.

Despite this we await the Minister's implementation of law reform in the areas called for by many voluntary organisations, which were mentioned on the last occasion. The Minister then went on to state, at col. 512 of the Official Report of 12th February, 1974:

At this stage I would like to refer to the question of legal aid.

He went on to refer to this at some considerable length. In the final portion of that paragraph he stated:

We are probably the only member of the Common Market which does not provide legal aid in civil matters and, indeed, our membership of the Community imposes obligations on us to introduce a measure of civil legal aid in certain areas. This is a question to which I have given much thought and I have decided, as I announced recently, to set up an informal committee to advise me on the introduction of a system of civil legal aid. The committee will consist of representatives of both branches of the legal profession, a representative of FLAC, officers of interested Government Departments and the chairman will, I hope, be a judge. The precise terms of reference and the membership of the committee are at present being settled but I expect to have the committee established and working very shortly.

The Minister has referred on at least one occasion, according to the Official Report, to setting up a committee to advise him on legal aid in civil matters. He again announced it on the 12th February, 1974. As I understand it— I am subject to correction—this committee have been set up by the Minister with carefully worked out terms of reference. This is the Committee on Legal Aid and Advice on Civil Matters, which is known as the Pringle Committee. This committee are to report as speedily as possible. On the last occasion I suggested that the Minister might put a time limit on when the committee might finally report. We look forward to the speedy conclusion of the deliberations of this committee.

On civil legal aid itself it is easy to stand up in Dáil Éireann and pose many problems without offering solutions. The experts on the Pringle Committee will undoubtedly examine the question of an income level for needy litigants requiring either advice or civil legal aid. I suggest that there should be income limits for those people seeking civil legal aid and that those limits be tied to some aspect of our social welfare system. For instance, the income limit for those who qualify for social welfare medical assistance might be a suitable limit for those people who would be entitled to civil legal aid. In other words, as the Minister admitted in his speech on the 12th February, 1974 there should be some sort of means test or means limit in the case of those people who would have access to free legal aid. This would prevent the wealthy benefiting as against the poor litigants.

This will involve a substantial increase in civil litigation, that is, litigation between citizens. The House will agree that the Judiciary is already overburdened. In addition to increasing the number of judges at District Court and Circuit Court level the Minister might ask his committee to examine the possibility of increasing the civil jurisdiction of both the District Court and the Circuit Court. As we know, the District Court at the moment in civil matters has a jurisdiction of not more than £250. The Circuit Court has an upper limit of £2,000. I suggest that even now those figures have been eroded by inflation and it is unreal in 1974 to talk about the District Court jurisdiction in civil matters not being more than £250. The same applies to the Circuit Court at £2,000. The Minister might increase their jurisdiction in civil matters. I suggest the possibility —it is just a proposition and there is nothing inflexible about it—of extending the jurisdiction of the District Court to £1,000 and that of the Circuit Court to about £4,000.

I make this point on the grounds that we are discussing on this occasion the whole area of the needy litigant and the need for the litigant who has not got money to have access to our courts. I make these two propositions on the basis that court costs at District Court and Circuit Court levels are far less, by definition as well as practice, than those of the High Court and the Supreme Court. I believe an examination of my proposition might be worthwhile. I will not say it will be worthwhile: one does not like to sound in any way too definite about one's own ideas because they are always subject to scrutiny, discussion and conclusion. These are some of the matters I should like to mention to the Minister in the short ten minutes I have to speak on Deputy Haughey's motion.

I should like to come back to a question I have on the Order Paper and which I mentioned before. This is:

To ask the Minister for Justice the number of occasions on which the Committee on Legal Aid and Advice on Civil Matters has met.

As I understand it the important words there are "Advice on Civil Matters". People will have open to them advice and, having got it, they might then discover there might be no need to engage in litigation.

An Ceann Comhairle

Perhaps the Deputy would now conclude.

Mr. Andrews

Yes. I would place the emphasis on the word "advice". The Opposition will support any reasoned and reasonable reforms in the area of civil and criminal legal aid the Minister might propose to the House and indeed any reasoned and reasonable reforms in all the other areas in which he has promised to act.

Mr. B. Desmond

I welcome this motion and it is particularly appropriate that while the Pringle Committee is sitting we should convey our views to the committee through this House. I particularly welcome the establishment of the Pringle Committee whose members I regard as having very special competence and concern in this field and I have no doubt their report will be quite radical and comprehensive. I expect we shall receive it as soon as possible and the sooner the better.

I have been acutely aware over the years of the need for assistance and information in the increasingly complex area of people's rights under the law. Last February the constituency party I represent, the Labour Party in Dún Laoghaire, submitted a policy statement on citizens advice bureaux and associated matters to the Government calling for State assistance in respect of the establishment and operation of the bureaux. We are glad to know that submission in the response of the Government has been quite fruitful. We must also recognise the invaluable work of FLAC which has provided free legal aid and advice to many people on a voluntary basis, people in urgent need of such help. This motion particularly pinpoints, as do the work of FLAC and the demands of Deputies regarding the operation of the 1962 Act, the duty of the Government now to provide much extended assistance in this field. As an extension of social policy I would strongly urge that there should be a very comprehensive State supported system of legal aid and advice in civil matters.

I also support this motion in the light of the experience I have gained in my attendance at my own constituency information bureaux. We have organised these in the absence of State assistance. I do not believe it should be a function of political parties to do this but when the State falls down on a job we must attempt to step in to provide the vital information citizens need. Every week we have ten, 15 or 20 complaints at the five or six centres we have in operation. These are in addition to the problems brought directly to public representatives. I have certainly found a very large and growing number of inquiries relating to people's rights under the civil law. There are those who now suffer because of lack of representation before the courts and various public tribunals. There are people who suffer because of the growing complexities of the income tax law and the property law and they are not in a position to receive appropriate, readily available legal aid. As Deputy Haughey quite rightly pointed out, in the field of inter-personal relations chronic hardship can result from inadequate and inaccessible legal procedures. I do not regard Deputy Haughey as a very radical Deputy. Indeed, in relation to matters of company law, income taxation or, say, relations with Northern Ireland I would regard him as rather conservative and in some respects extremely conservative.

Mr. Haughey

In these days I think it is well not to be thought a liberal.

Mr. B. Desmond

When one gets rid of all the public relations talk and so on I think I would come to the conclusion that my colleague, Deputy Haughey, in many areas of social policy is, perhaps, conservative.

Mr. Haughey

Has the Deputy studied my record as Minister for Justice?

Mr. B. Desmond

I am coming to that. If one takes the 1962 Act I thought there was perhaps an undue amount of retrospective self-praise on the part of the Deputy in regard to that Act and the scheme he introduced. I am referring particularly to the scheme in operation.

Mr. Haughey

It was a start.

Mr. B. Desmond

It was, but even in 1962—it may seem a bit harsh to Deputy Haughey to say so—it was modelled, as the Deputy knows, on the British Act and on British procedure then operating. I would be the last to accuse the Deputy of aping the British but that is precisely what did happen at that time because the present grossly inadequate scheme of legal aid in criminal matters was based on the scheme which had operated in Britain but which, even in 1962, was regarded as most inadequate by common consent. This was the time when the Irish Act was passed. One authority I can quote in that regard is Desmond Greer, then lecturer in Law at Queen's University, Belfast and in the winter 1969 edition of the Irish Jurist he said:

... the (1962) Act is in fact modelled on earlier English statutes which were subsequently modified and then repealed. The difficulties of interpretation and application which led to their modification appear to have been overlooked (in the 1962 Act); the causes of dissatisfaction which led to their repeal seem to have been ignored.

Therefore, we have the situation that even while I commend Deputy Haughey for having convinced a very reluctant Government and the Department of Justice, that the first step should be taken, even as a first step one must, in perspective, regard it as a very tentative step at that time.

Mr. Haughey

Fair enough, I accept that.

Mr. B. Desmond

I think we share concern in that regard. I think the Government should introduce a scheme incorporating a number of features. My first proposition to the Minister would be a scheme of civil legal aid and advice modelled to some extent—but only to some extent—on the 1972 Legal Advice and Assistance Act in Britain because the British scheme even now, ten years later, is regarded as having very serious and grave defects. I am assured by those with a deep interest in the field of legal aid that there are many better alternatives in existence, either in the American or Canadian contexts and particularly in Quebec in Canada. I should like to draw the Minister's attention in this regard to a speech made by the Lord Chancellor, Elwyn Jones at the English Law Society's national conference on October 19th in Harrogate. He called for an extension and revision of legal services to the public. He said that the legal rights of many people were going by default under the 1972 Act in Britain. According to a report in the Sunday Times on the following day he said:

... a recent report from his advisory committee of legal aid showed that some people do not know of their rights, or if they do, often do not have the money or ability to enforce them.

Lord Elwyn Jones went on to say that the report was "a deeply worrying indictment" of the current British legal aid system. We must be very careful about absorbing the British system into any innovations we may have here; I fear Irish lawyers tend to work on that basis. The latest British report shows that there are considerable areas of law in housing in particular, landlord and tenant matters and welfare matters where expert advice was urgently needed and very hard to come by. The eminent Lord Chancellor Jones went on to say he was seeking ways of ensuring that the services were provided in future and that one of the best ways—which I recommend to the Minister—was by the provision of more centres. I share with Deputy Haughey his deep concern in this regard. We need in Dublin a wide network of free legal aid centres, and the sooner we have them the better. We should be very careful, therefore, about adopting the purely British scheme. I fear that, perhaps, some of the more conservative elements in the legal community—and I do not want to impinge on the work of the Pringle Committee—might be tempted in that direction.

I agree with Deputy Andrews that there should be a scale of contribution, graded according to disposable income, with a special automatic eligibility provision for people in certain categories, such as medical card holders. There should be a ceiling on the amount of service provided. I would class Deputy Haughey as rather conservative, but if I may make a conservative socialist comment, there has to be selectivity.

Mr. Haughey

Some of the best socialists go for selectivity.

Mr. B. Desmond

I think there ought to be a ceiling, although this ceiling could be exceeded on application to a central commission on legal aid and advice. The scope of the scheme should include areas of civil law such as the right of association, contractual rights, property rights, marriage break-up, landlord and tenant, consumer protection, personal injuries and social welfare and employment payments.

The service should emphasise the need for early help. It is tragic that such help is not available. If that early advice was available, there might be no need for the parties to proceed with damaging litigation, particularly in the field of marriage breakdowns. Publicity and accessibility are important factors here. In promoting accessibility, there must be close liaison between the citizens' advice bureaux and legal aid solicitors. Effective referral between the two agencies must be ensured. There should be lists of solicitors indicating their speciality. The legal profession is ultra-conservative. We know the difficulties of compiling lists of solicitors, but it is necessary to have such facilities.

People who appear before social welfare bureaux, redundancy appeals tribunals and so on should be clearly and fully informed of their rights of legal representation and given the opportunity of obtaining free legal aid. I would fault, perhaps, Social Welfare or Labour in that, where somebody is entitled to free legal aid in the processing of an appeal, very frequently it is only if he reads the small print of a public service circular that he discovers that he is entitled to some assistance. That system should be improved.

As in any new scheme, the scheme should incorporate a research project into the interlinking areas of poverty and the legal system. This project should be an ongoing one, ensuring that the right kind of legal aid and advice is provided for those who most need it. It should also work closely with the proposed Law Reform Commission.

There is another suggestion which I am sure would have the support of Deputy de Valera, in view of his concern over the years that we, the bureaucrats and politicians, should not be running people's lives for them. The basic objective of any scheme of legal assistance should be for people to help themselves. Many people are unaware of their rights or of how to obtain those rights. A long-term solution to these deficiencies would involve a proper programme of civic education at all school levels, at all public forums. We should urge people to have a sense of inquiry, a sense of critical examination, so that they can help themselves to obtain their legal rights.

Any worthwhile scheme of legal aid must be expensive. A comprehensive scheme which would envisage 50 lawyers and back-up staff would cost between £1,500,000 and £2 million. However, in the light of the amount of suffering and distress involved, it would be money well spent. If we can spend £1 million a year on health, we can certainly spend £1 million or £2 million on free legal aid. Anyone who talks in terms of spending less than this each year is not talking realistically.

In addition, a good deal should be done within the Minister's own profession to broaden the horizons of solicitors and barristers through their professional courses into such areas as the law affecting deprived people. It is all very well to say paternalistically: "Some poor devil requires legal aid. We will provide it for him." That is political and social charity of an obnoxious kind. Free legal aid should be available as of right to citizens, and the legal profession should accept this as a fundamental aim of social policy.

I would like to see in future solicitors working more closely within their own communities. For example, 81 per cent of solicitors in Dublin County have their offices within the Dublin city area and many of them do not operate within the communities which they wish to serve. I have noticed that many of the young solicitors who provide free legal aid particularly in south Dublin are also deeply involved in their communities at local level and make a distinctive contribution not merely in relation to free legal aid but also on a wider basis.

I urge the Minister and his colleagues in government to implement these reforms as a matter of the utmost urgency. There is a good deal of public frustration about the prolonged delays in successive Governments' law reform programmes. As we have a former Minister for Justice and the present Minister for Justice present, it is not unfair to say that the legislative programmes and enactments to date of successive Ministers for Justice have shown a peculiar malaise—a lack of political determination, a lack of political will. The reality is that all the good intentions in many areas——

Mr. Haughey

I am driven to the reluctant conclusion that the Deputy has not studied my record as Minister for Justice.

Mr. B. Desmond

I have, but I make the point that good intentions must see the light of day on the floor of this House.

Mr. Haughey

They did.

Mr. B. Desmond

There is an urgent need for a Bill on free legal aid, an imaginative and broad Bill. I have no doubt it will come and I would hope that by the middle of next year it will have seen the light of day. I would suggest, perhaps, May 1975 to the Minister. I have no doubt that the Minister will produce many other reforming enactments but if he were to do only that I would regard him as having had a successful term of office. I strongly recommend the motion to him and urge him to expedite the Pringle report and ensure its implementation as quickly as possible.

Major de Valera

I was interested in Deputy Desmond's point about my approach to this. Yes, it is just that —a concern for what is commonly called the rights of individuals. It is something that can be pressed too far, I freely admit. It is a concern for the common right of self-assertion for the ordinary member of the community, the common right to be an individual man. In this area we are dealing with one of the results of modern social development, socialism, if you like, which tends to constrain and put down the individual. It is the type of thing that has reached the depths in certain areas of England where a local authority will dictate to somebody what colour his hall door is to be painted, where there is a complete intrusion on the rights of the individual. Here we are dealing with a negative constraint that prevents the individual from asserting his rights. Deputy Desmond mentioned a matter in his own constituency. I was amused because at present I am being asked about the problem of a wall being built by or under the aegis of the Minister. A particular individual is alleging it to be an incursion on his private rights. Bringing it to the political area is not the correct way of doing it. If there is a right it is a legal right. In this case I suspect that if there is any right it is a right of light. A TD is not an expert in law unless by accident he happens to be a member of the legal profession. It is a question of getting legal advice and then being able to take the legal advice. People are not normally in a position to do that because the initial cost of determining what one's legal rights are is prohibitive. Even if one were to know what one's rights are, there is still an element of chance and doubt which renders the pursuance of the case a financial gamble, a gamble which the individual may not be in a position to afford.

I have mentioned a factual case. Abstracting from that, if a State Department or a big corporation erects a building and infringes my rights, in order to determine my rights I must, first of all, take into account that if it is the State there may be peculiar privileges attaching to it, perhaps, hidden legislation. If I go to a lawyer it will cost me money to find out and then I may find that I cannot go any further. If I am advised to proceed I am almost in a worse position because everybody knows the risk of taking action against the State, hedged in by years of legislation and tradition. If it is a big corporation there are untold resources to battle the whole way through. The system is so inhibiting that one must simply let one's bone go by default. This is fundamentally the question of free legal aid in civil cases. The individual has no way of determining his rights except a costly way. Even when he gets the best advice possible there is still a further gamble. When it is stated that way everyone will admit that there is a problem and, I believe in principle everyone will agree that Deputy Haughey's motion is justified and should be supported.

I do not think it is enough for us to do this. I do not think it is enough to approach it in the way Deputy Desmond did without having due regard to the realities of the moment. It is very easy to say as Deputy Desmond said: "Set up such and such and then the State will pay for it". There are two fundamental objections to that kind of approach to a problem like this and in principle, therefore, I am not too enamoured of the way Deputy Desmond presented the case.

It is all right to say we should set up such and such bodies, ad hoc. Surely that is one of the curses of our society, one of the things that are bringing all the complications into the picture—that in every area there are ad hoc bodies being set up and ad hoc action being taken which clogs existing machinery and very often is self-defeating. Therefore, without going off into very wide fields, staying in the field of law, we must first of all have regard to certain facts, to a certain machinery, to a certain set-up that is working and, from the point of view of law, is working well. If it has defects we should first of all ask what they are before we talk as Deputy Desmond did, before setting up this ad hoc body and that ad hoc body, because simplicity will mean economy in the long run and complexity will mean wasted resources.

What have we to take into account here? First of all we have got to take into account the Constitution which provides that legal rights both for groups and individuals are to be determined and resolved by the courts set up under the Constitution. We cannot get away from that unless we are to upset the whole approach to the matter. Under that broad direction and structure of the judicial system, there is the system of the courts, from the Supreme Court through the High Court and the Circuit Court to the District Court—a definite legal structure which has served and I believe can be made to serve all the purposes involved.

In approaching this problem I submit first of all to the Minister that one must have regard to that fact. One phrase used by Deputy Desmond I may have misinterpreted, but I think he suggested ideas of ad hoc arbitrators. The more bodies you create, the more confusion you will create and the more waste you create. We have a sequence of courts downwards. Perhaps towards the bottom there is some diversification, and specialisation may be needed, such as at the District Court level where there may be need for special children's courts and so on. However, they must all be oriented to the central structure that is provided and has worked. That is my first comment.

Free legal aid, yes—assist the individual by all means by free legal aid— but you will save money to enable us to do that and you will get efficiency and certainty in advice to the individual in the assertion of his rights if you are prepared to keep a simple straight-forward structure and to use it, avoiding the temptations to rush off, ad hoc, with this red herring and that red herring. Having accepted that about the courts, the next thing to be taken as a fact is that we have a very well established legal profession with two branches. The legal profession has served the community well. Saving always the problem of possible reorganisation, that should be accepted and the question asked about the best way of doing it, or using that profession as one of the means by which the individual will secure his rights.

In that respect, Deputy Desmond mentioned what he called paternalism and patronising charity—in other words, quite often solicitors and barristers have given their services free in certain cases and Deputy Desmond appears to think that is an insult. It also is a service. I have known this to have been done, but if one is to take Deputy Desmond's socialist approach to this—without in any way putting any petulant meaning on it—then a question arises to be considered in regard to the legal profession as it has arisen from the point of view of the medical profession.

It is becoming increasingly clear in England that if you take a body like the medical profession and remove the professional stimulus and reduce it simply to an anonymous service, humanity will pay for it, the community will pay for it, the best is lost and you will level off a lot of things at the lowest level, not the highest. In the same way, where law is concerned, if you want to get the best advice here, if you want this thing really to work, if you do not want to have in the legal sphere what has happened in the medical sphere in England— there, the panel system, for instance, has resulted in desperate inhumanity in many cases: doctors have been reduced to mere mechanics without choice of doctor and so on—you must be very careful if you are not to have this happening in the legal sphere, that you do not reduce the legal practitioner to the level of that kind of hack who simply in the end regards himself as being a kind of State servant with a guaranteed income with no stimulus to rise above it.

Then you may be importing into the picture a perturbation that is highly undesirable. We must remember here there is a totally different thing. We are suggesting a proper State service in a profession where there is a very high tradition. The danger I see in this kind of taking over, if that were contemplated, is that it would have this effect on the service which the legal profession give to the community. It is a much abused profession sometimes, but any of us who have known it appreciate how unfair the criticisms have been in this respect and how difficult the problems of the lawyer are.

Time does not permit me to expand on that. I merely want to say that in using the organisation and the mechanism of the courts, unless you are to cause some undesirable perturbations in the whole legal picture you must accept the legal profession as it is and its method of operation and have due regard to the healthy operation of that profession in its task of activating and causing the judicial machinery to work properly. That is my second point.

The next point I would make by way of question. Why is it that it is acute nowadays to provide legal aid for people wishing to assert their rights? I am struck by a contrast here. In the early days of the century and at the end of the last century Irish country life was characterised by a plethora of naïve legal actions asserting rights. The problem was litigious litigation, as it used to be called. The Minister possibly knows of instances in his own rural area. Now it is the reverse. Why? Something over 50 years ago the problem was to stop people trying to assert rights and be over-litigious. Now the problem is the reverse. Wherein lies the fault? Quite apart from this over-riding socialism, if I may so describe it, the community dominating the individual in every sphere, in the legal sphere the reason for the change is to be traced to this House perhaps, to a multiplicity of legislation, administrative legislation, ad hoc legislation, legislation designed to plug loopholes with Ministers coming in all too frequently to plug administrative loopholes, and all this has made it very, very difficult indeed for anybody, even a trained specialist lawyer, to know in certain cases what the law is or what the right is. That is one of the problems with which we are coping here, whether we realise it or not. It is not a question so much of giving money for free legal aid. I would hazard the opinion that you could give all the free legal aid you liked and at the end the plight of the individual might not be any better or he might get so many “No can do” answers that the whole exercise would not be worth the trouble involved. This is a very salutary thought. Perhaps the best way to free legal aid, certainly the most economic way, would be a total review and reform, from the point of view of the individual and not from the point of view of administrative convenience, of all our laws or, in other words, law reform in its broadest sense.

Years ago a country man could go into his local solicitor about a rightof-way or a bit of land and get a fairly certain opinion. The solicitor would be able to say either "Yes" or "No". I have known cases where a solicitor said "No" and the litigant went to another solicitor. In the early days if a solicitor were not sure he took the advice of a barrister. The barrister could sit down and be sure of the opinion he was giving. I was once very impressed reading about Dan O'Connell; a colleague had come across an opinion of his and preserved it and it was quite direct and simple and the reaction was: "Would it not be lovely if it were like that nowadays?" Today, there has been such a multiplicity of legislation one has not a chance.

I make the point. It is a very important point and I would like the Minister to look at it—it is the contrary point and it is the last I will make, simply to add to the confusion. Deputy Haughey's Succession Bill was another multiplication of uncertainty. He will not mind me saying this here: the type of legislation that makes this particular motion necessary is the kind of legislation we had in Deputy Haughey's Succession Bill. I just mention that. If you like, it is jocose and I know that Deputy Haughey will take the banter as well as anybody else.

I want to give the Minister a chance to get in. I have not finished. I have hardly been coherent. As Deputy Esmonde said, this is a broad subject for anybody who knows anything about legal administration. I will leave it at that.

Lastly, there is the matter of costs. The costs of the Minister's Department and fees all add to the complexities as well as to the cost of the individual trying to find out what his rights are. In all sincerity, could we not look at the lot and seek simplicity, directness, straight-forwardness? Initially, that would be the very best approach to this problem.

Minister for Justice (Mr. Cooney)

I am obliged to Deputy de Valera for taking less time than he was entitled to in order to give me an opportunity of getting in. To comment on his last point first, we would all dearly love to see as simple and coherent a system, so straight-forward and easily understood, that it would actually preclude litigation and the rights of citizens vis-á-vis each other would never be in doubt. Because of people and their relationships with one another and because of commercial relationships, the whole question is so inherently complicated that rules for regulating these relationships must necessarily be complicated. The simple life, as it were, is precluded by the demands made by the twentieth century.

The motion deals with both criminal and civil legal aid. I shall speak first on the criminal legal aid side. Deputy Haughey was Minister for Justice when this was introduced and he deserves credit for what was then a pioneering move. As he freely admitted, it was a tentative move. It did not go into the field of civil legal aid. I think Deputy Haughey used the word "timorous" at one stage to describe the approach of himself and his Government, an approach which was, I think, necessarily forced on them by the need of having regard to the Exchequer. The Exchequer is in the background for all of us when we want to introduce reforms or improvements in our society. We can only move within the constraints of the national budget and those constraints, I have no doubt, loomed large in Deputy Haughey's field of vision when he was pioneering this move in our legal system. Nevertheless, the move was a good one and it is wrong to denigrate or run down our present system of criminal legal aid. I believe that both the structure and the administration of our legal aid system are quite satisfactory. It can be criticised on the level of fee made available, and the involvement of the legal profession in it can also be criticised. Whether that is the fault of the legal profession, or whether it is the fault of the level of the fee which has been offered from the beginning, is something on which we can have an argument. There are faults on both sides.

I speak as a person who practised law in a country town and who, from the time this system came into being, was glad to avail of it and considered that the fees were an improvement on the fees I had been getting for similar type of work before, which are very often nil or nominal because the type of litigant in much criminal work in the District Court is not in a position to pay fees—petty larcenies and the like. I found this system a great boon. Unfortunately—and I have to say this against my own profession—there was a rather superior approach to it, that this was a charity law, and that if solicitors came into it at all they came into it very grudgingly. There was not the co-operation in the scheme from the legal profession that should have been forthcoming. That is my opinion as one who practised law up to 18 months ago.

There is no doubt that, having regard to the amount of time criminal work demands from a solicitor who might have other lucrative business which has to be foregone, the level of the fee was not attractive in the context of other business to be done. But in the context of having an obligation to provide services for people charged with breaches of the criminal law, and in the context of the level of fees up to then pertaining, they were generous. However, that is the only criticism I have to make of the system of legal aid in criminal cases.

After the first couple of years—and I will not embarrass Deputy Haughey by guessing why in the first couple of years there was some slowness on the part of the courts in granting certificates of legal aid—it became clear that it would not break the Exchequer and I found that the courts were forthcoming, and reasonable, and sensible, in granting applications for legal aid certificates. This is still the position. The percentage rate of applications granted is away up in the high nineties and it is only the very odd litigant, the very odd offender, or person charged, who is refused a certificate to enable him to have legal aid in criminal cases.

At the moment there is agitation by both the solicitors' and barristers' branches of the profession to have the level of the fees changed. I am having discussions, and in some cases my Department are having discussions, with both branches of the profession to see if we can reach a figure that will satisfy them, all the time keeping an eye over our shoulder on the Exchequer, as we must. I would be anxious that the fees would be such that neither branch of the legal profession would have any excuse for dodging what I think is a professional obligation to come into the legal aid scheme, put their names on the panel, and take their turn in providing services for offenders or alleged offenders. This is very important.

There are only two criteria for granting legal aid. One, that it is essential in the interests of justice, having regard to a number of factors including the seriousness of the charge, or if there are exceptional circumstances. This gives the court wide discretion. The other is that the means of the applicant must not be such that he could provide the service for himself. My experience is that the courts are generous in granting the certificates of legal aid.

During the year we made two amendments to improve the structure. These amendments were to enable legal aid to be paid in respect of preliminary hearings in the District Court. This was an odd gap in the system and led to some injustice. I suppose that originally it was felt that, if a person pleaded guilty and was sentenced, that was the end of the matter and that, if there was an appeal, it would be a mere formality. There have been cases of actual hardship with regard to the sentence where there were grounds for appeal on grounds of severity and legal aid was not available and this inhibited appeals being taken. That improvement was made during the year.

We also provided a further change during the year to deal with a person who, having pleaded guilty in the lower court, was sent forward for sentence only to the higher court. This was another gap in the system. That person was not entitled to legal aid in the higher court. We have closed that gap, too. At all stages in the criminal legal process, legal aid is available for offenders. It is my hope to increase the level of legal aid for both solicitors and barristers and it is my hope that this increased level will induce more and more professional lawyers to participate in the scheme so that it will not just be a social service provided by some lawyers with a social conscience but that the profession as a whole will discharge their professional obligation and take part in the scheme.

There has never been any system of civil legal aid with the one exception mentioned by Deputy Haughey and, if I might use a phrase which Deputy de Valera does not like, it was an ad hoc arrangement to provide assistance in habeas corpus cases, which of course were usually important cases involving the liberty of an individual and probably an important constitutional point. It was important that such cases would not be inhibited by financial considerations. Consequently legal aid is provided on an ad hoc basis by the Attorney General and the Minister for Finance to defray applicants' expenses in such cases.

It might be interesting for the House to know with regard to criminal legal aid that there has been a steady increase in the number of claims or applications for it. In 1970-71, the number was 470. It went to 1,271 in 1973-74. That shows there is a greater public awareness of the availability of legal aid. I have not got a breakdown as to how many of those were in Dublin. Applications in the Children's Court in Dublin have increased and this would probably be a contributory factor. This is another figure which it may be of interest to hear. Taking the same period: in 1970-71 expenditure on legal aid was £13,201 and in 1973-74 it was £34,666. This was a considerable increase and possibly—I am subject to correction on this—there was an increase in fees in that period.

Even with that the budget, the amount provided, has not been used up each year. For example, in 1972-73, £35,000 was provided and £31,699 was spent. To the end of March, 1974, £45,000 was provided and £34,000 odd was used. The scheme is there and my experience is that it is being used on a pretty wide scale. It is not an extravagant scheme. I say this looking over my shoulder at my colleague in Finance: I think it could stand some increases in fees.

I agree with the spirit of the motion with regard to civil legal aid. Everybody who has spoken here is in favour of its introduction. What disappointed me in the debate was the lack of attention paid to the committee which is at present examining this question with a view to making recommendations to me, and more particularly with regard to its terms of reference. If Deputies had studied its terms of reference they would see that most of their worries about the type of schemes we would like are being met.

I should like to read the terms of reference: to advise on the introduction at an early date of a comprehensive scheme of legal aid and advice in civil matters and to recommend on the form, nature and administration of the scheme and on the legislation necessary to establish it; to consider whether, pending the introduction of a fully comprehensive scheme, it would be desirable and possible to develop, as a matter of urgency, a system of legal advice centres and legal aid in certain categories of cases which the committee considered merited immediate consideration; to estimate the cost of the scheme or schemes proposed and advise on the manner in which such scheme or schemes could be financed, including the possiblility of contributions from legally-aided persons and from persons having a legal obligation to provide for or to compensate such persons. I am sure Deputies will agree that those terms of reference cover the points which were raised here. In regard to the need for advice bureaux, as Deputy Desmond indicated, the Government have taken a decision to set up citizens' advice bureaux. One very important element of advice which citizens need is legal advice. As Deputy Haughey rightly pointed out, legal advice can be more important than assistance towards litigation because it can solve the problem without the need for litigation.

The committee are invited, if they think fit, to come with an interim report on the question of legal advice. The committee are invited to consider the cost of the schemes proposed because it all gets back to the question of money. The extent of the scheme depends on what we can pay for it and the committee are invited to consider how such schemes can be financed, including the possibility of contributions from persons themselves or from persons having a legal obligation to provide or compensate such persons. It was suggested by Deputy Andrews and Deputy Desmond, that, perhaps, the scheme should be limited to certain categories of persons, for example, medical card holders. That has a certain attraction in it, it is a cut-off point and it makes the thing financially less dangerous but I wonder if it meets the need which legal aid is intended to, to enable persons to sustain and maintain their rights in courts. Middle-class people, who are normally excluded from such benefits, also have the need to maintain such rights. There is a vast difference between taking an action in the High Court and paying for one's doctor. For this reason I feel it would be unfair to suggest to the committee that there should be a cut-off point in certain categories of socially assisted persons.

I would prefer to leave it to the committee to advise on this because I have every confidence in the committee. The committee is chaired by Mr. Justice Denis Pringle and the other members are: Mr. Thomas G. Crotty, county registrar, Kilkenny; Mr. Brian Gallagher who represents FLAC—I am glad to say that FLAC are formally represented on this committee—Mr. Justice Liam Hamilton; Mr. James J. Ivers, Director-General of the Law Society; Mr. Eunan McCarron, solicitor; Mr. T. Brown, social and economic adviser to the Minister for Social Welfare; Mr. C. K. McGrath, Department of Finance; Mr. J. McMahon, Department of the Public Service and Mr. Pearse Rayel, Department of Justice.

I wish to take issue with Deputy Andrews, and, to a lesser extent, Deputy Haughey, on a number of points. I would not dream of directing a committee of that eminence and that spread of knowledge and experience to report to me within a certain time. I will leave it entirely to their own discretion as to when they will report in the knowledge that their terms of reference permits interim reports and that their terms of reference are wide and were carefully settled.

Deputy Andrews went so far as to say "Generally they are doing it on a voluntary basis". The Deputy was referring to the committee, and lest there be any doubt about it I want to say that it is not a question of "generally". This is a voluntary committee completely. Deputy Andrews also said that the committee were some type of a refuge for party political followers. In my view this is an insult to the members of the committee and I reject it in its entirety. When talking about delays, this Deputy suggested that the committee should make an interim report within six months and the final report six months to 18 months afterwards. If it is speed Deputy Andrews wants that is hardly the advice to give.

Deputy Andrews mentioned FLAC and said: "They have not received that much assistance from the Government of the day". If the Deputy was speaking about our predecessors he exaggerated the case because FLAC received no assistance whatever. I am glad to say that this Government empowered me to give them a grant of £5,000 per annum and they have had that for the year ended March, 1974. They will also have a similar grant for the year 1974, a nine-month year.

I am very conscious of the importance of civil legal aid. The House will agree, having heard the comprehensive terms of reference and the status of the personnel of that committee, that I have taken practical steps to have my concern implemented into practical suggestions. I look forward to that committee reporting as soon as possible, without attempting to direct them as to how soon they should report. I look forward to getting a comprehensive and sensible report and to implementing it with the good will of a Government committed to social justice. As Deputy Haughey said, this is something every Minister should look forward to being able to do. I look forward to being able to implement legislation which will result from this particular committee's report.

I take exception to the wording of Deputy Haughey's motion. The motion reads:

That Dáil Éireann calls on the Government to introduce a comprehensive scheme of free legal aid in civil and criminal matters.

It is excessively narrow in the sense that it formally excludes advice. From what Deputy Haughey has said he intends that it would be taken in the spirit of including advice. While I might quibble with the form I accept the spirit behind the motion.

Mr. Haughey

I should like to express my appreciation, and the appreciation of Deputies on this side of the House and those on the Government side who have spoken, to the Minister for the manner in which he has accepted this motion in principle. I apologise if the wording of the motion appeared to direct the scheme towards legal assistance in court because I intended, not alone to include advice, but to be more heavily orientated towards advice than towards assistance in regard to actions in court.

I am glad to find that there is in the House a complete acknowledgment of the need for a fully developed scheme whereby legal advice and assistance are made available free of charge to any citizen in need of them. That need is self-evident. In my view it is essential, in an enlightened society, that every citizen should be in a position to ascertain what his legal rights are in any situation and, having ascertained them, to be able to assert them when the need to do so arises. No citizen should be denied access to the law. Every schoolboy knows the historic classic battle that took place in ancient Rome between the plebs and the patricians about the rights of the plebs to have access to the legal system that prevailed in that ancient civilisation.

If our legal system is to be too expensive or too remote from the ordinary citizen then the law, and the courts, will become a sterile institution. This would have very serious social implications for us. If a private citizen cannot avail of the law in his everyday affairs the law will become something for which he has no respect or regard and, indeed, something towards which he could develop a positive hostility. That would be an entirely undesirable social state of affairs.

As the Minister outlined in his remarks, the principle of the State providing a legal service free—I use the word "service" as distinct from the word "aid"—is fairly established. The service is provided in criminal matters and I am glad to note that the Minister has the situation in regard to the free legal aid in criminal affairs under review. I hope he will be successful in having it updated and a bit more efficacious. At present we have a free legal service provided to certain of our citizens from the Probate Office and, as the Minister has mentioned— in habeas corpus proceedings, the State does come to the aid of the citizen when deemed necessary and desirable.

Therefore, the principle is firmly established; the need is equally clearly established. To an ever-increasing extent today public attention is focused on the matrimonial and domestic area. Here the case for free legal aid is quite incontrovertible. Like myself, every Deputy has been approached from time to time by distraught husbands or wives who have serious problems in that area and who are at a complete loss to know how to cope with the situation. Indeed, we Deputies approached in this way are very often also at a loss. It would be a wonderful social improvement in our conditions if Deputies and the other people concerned were in a position to direct people with matrimonial, domestic and family problems to advice centres where they could get expert, authoritative opinion on their needs. It is frustrating for public representatives not to be able to offer the type of assistance and advice needed in these cases. Of course, that area is probably the one that evokes our deepest sympathy and one that causes the greatest amount of suffering. It is the area where there are more wrongs crying out to be righted than any other.

There are other areas also in the domestic sphere where free legal aid is urgently needed. I mentioned in my opening remarks a few of them. Every Deputy in this House, dealing with constituency matters, comes across countless cases where, in the ordinary, everyday life of the constituent, some form of legal advice, assistance or aid is absolutely necessary. I would try to direct the scheme's main emphasis towards legal advice and assistance in family affairs, to the head of the family, whether it be husband or wife, who is endeavouring to cope with family problems. I do not mean matrimonial problems now. I mean domestic problems—matters such as hire purchase contracts and so on.

I do not know if many people today realise that the document they sign these days is not a hire purchase contract at all but is, in fact, a promisory note. There are cases of young couples buying houses, paying deposits on houses, people renting houses or apartments, people buying goods, buying domestic appliances, being sold inferior products and not knowing what is the remedy. There is there, if you like, a fairly wide area of minor law concerned with domestic transactions which can give rise to a great deal of distress, frustration and annoyance amongst the general public. It is quite true that even intelligent people can be cheated in these areas and can be defrauded. Very often all that they need, either to avoid being defrauded or to allay the sense of frustration and grievance they feel, is good, sound legal advice and not necessarily legal action or a court action at all.

If we accept the principle, if we accept the need, then the only thing left that might cause us any problem is the question of the cost to the Exchequer. I should like to make a a suggestion to the Minister in this regard. While I have called for a comprehensive system—and I should like to see it as comprehensive as possible—if the cost appears prohibitive and if there is any question of the prohibitive cost preventing the introduction of any scheme, he might consider leaving out running down actions altogether. My information is that, in one way or another, any person with a case in regard to a running down action will have that case taken up. I know the purists regard it as undesirable that it should be left to the discretion of the legal profession whether or not they take up the case. This is one very large area which might overload our scheme. Perhaps, initially anyway, it could be left out of the ambit of a scheme even though I am pressing for a comprehensive one.

On the question of cost, I have refrained from being critical because I welcome any move towards legal reform and for that reason I refrained from being critical of the recent announcement by the Attorney General of the establishment of a Commission on Law Reform. If we are dealing with scarce Exchequer resources, I would be very loathe to spend any resources on such a commission. I gather from the announcement made and from the indications given of the sort of commission it is going to be it will be expensive. I would much prefer that that money be used in the pursuance of legal aid, assistance and advice.

Also, I must confess to have been disquieted at the fact that it was the Attorney General who made this announcement and that this commission is going to be established under the jurisdiction and aegis of the Attorney General. To my mind, law reform belongs to the Minister for Justice. The Minister for Justice has the machinery. He has a section in his Department and all that it is necessary is to give that section more staff and let them get on with the job. There is a great deal of law reform that could be brought into operation immediately if the Department of Justice were given the incentive and the staff to do the job. I am looking quite doubtfully at the establishment of this Commission on Law Reform under the Attorney General, particularly if it is going to be very costly as I suspect it will be. I would much prefer to see these resources put towards the introduction of a free legal aid scheme.

I welcome the fact that the Government accept the motion in principle. That is a considerable step forward. Perhaps, in a friendly way, I should warn the Minister about his reputation in this regard. In many areas the Minister has established the fact that he has good will towards a number of desirable reforms but I should like to point out to the Minister that faith without good works is dead. Many of the groups and individuals who came to the Minister and found him receptive to their pleadings are beginning to feel somewhat at a loss.

Mr. Cooney

Would the Deputy like to specify?

Mr. Haughey

Not particularly.

Mr. Cooney

I think that claim is unfounded. It is a claim Deputy Andrews made also.

Mr. Haughey

I do not want at all to be acrimonious about it. I am merely making the general point that the Minister has accepted the case put to him by a number of groups for reform. My concern and theirs is that, while we accept the Minister's goodwill, we are not getting positive action. I should be very glad to pay a tribute to the Minister, when he leaves office—as I am certain he will in the not too distant future—for having brought in a comprehensive scheme of legal aid and assistance. I recognise that it must be a well thought out scheme. It must be well structured and have in-built safeguards. We do not want to have individuals taking capricious, long drawn-out legal actions in the courts at the expense of the taxpayers. The House would certainly accept that the Minister must have time to devise a scheme that would have these safeguards built into it but the Public Service has sufficient experience and the capacity to give us such a scheme quickly.

The Minister may consider that etiquette prevents him from doing so but there is no harm for this House to say to the Pringle Committee through the Minister that we want to see action fairly soon and we want them to get on with the job. The case is well established, the need is there and the principle is accepted. All that is needed is a scheme. Most of us here who are interested in the subject think we must tell the committee to get on with the job, to give us a report and have the scheme introduced quickly.

Question put and agreed to.