I move:
That Dáil Éireann calls for the immediate implementation of the comprehensive scheme for civil legal aid and advice recommended by the Pringle Committee; and calls on the Minister for Justice as a matter of urgency to take the necessary steps to ensure (a) that the remedies and procedures of the courts are simplified and made more accessible, and (b) that a broad review of provision of legal services and access to legal education in Ireland is undertaken without delay.
The purpose of this motion is to seek the commitment of the Dáil to the removal with all possible haste of a glaring, deep-seated inequality in the society for which we are the legislators. That access to the protection and remedies that the law provides should be available only in proportion to the amount of money in one's pocket must strike anybody who has spared even a passing thought for social justice as a truly monstrous situation.
Law is the fundamental, ordered basis of modern society and the legal process is the acceptable and practical means by which the citizen can protect his rights and by which he can seek redress when those rights are abrogated. That it should be available and accessible to all citizens on an equal basis is surely fundamental to the whole concept of justice as we see it.
In their submission to the Pringle Committee, the Free Legal Aid Committee had this to say:
Our system of justice is an adversary system in which it is the function of courts and tribunals to dispense justice between two contending parties. Where the contending parties appear before the courts or tribunal on fundamentally unequal terms, as is frequently and inevitably the case where one party has access to professional legal services and the other has not, the whole system is undermined. This gives rise to cases of grave injustice. It also creates a situation in which the law and judicial processes are regarded as hostile or unfair by a large section of the community. This must be a matter for serious concern in a society such as ours which relies on the law as an instrument of social justice and stability.
That view has been shared for many years by many people who thought seriously about social problems in society and by many Members of this House. For my part, my concern in this area has not been governed by the change of Government and it has not been brought about by the fact that I have been given some responsibility for subjects relating to the Department of Justice. I can recall a radio interview I gave when I was first elected to this House 13 years ago and I then instanced the fact that as access to the law was in proportion to one's capacity to pay it was a massive injustice in society. That has remained my position during the years.
The timing of this motion has been dictated by the publication of the Pringle Report. It is not a motion designed to censure the Minister in any way. It simply calls on him to implement the report in full. It was obvious that the Minister would await the findings of the Pringle Committee and the same applied to anyone seeking improvements or reform in this area. The findings of the committee were eagerly awaited by many groups, notably those fighting for women's rights. Their natural impatience at some stage manifested itself in seeking an interim report to cover the areas of law with which they were specifically concerned. Now that the report has been published and we can see the extent and scope of its work we must pay tribute to all concerned.
Personally I welcome greatly the clear indication in the Pringle Report that the committee favour the implementation of a full, comprehensive legal aid and advice system. It appears to me that only reluctantly and perhaps because they were asked to do so they propose the possibility of an interim scheme of a more limited nature. I urge the Minister to proceed forthwith with the necessary steps to ensure the implementation of the full, comprehensive scheme of legal aid and advice. There may be a temptation to settle for a more limited scheme, perhaps to yield to more obvious pressures, but that should be resisted.
I shall quote from the Fianna Fáil manifesto but not for the usual reasons. I accept as genuine the statement in the manifesto which states that legal aid will be extended to civil cases where necessary but I am concerned that the manifesto goes on to say that as a first step it will be introduced in the area of family law. Family law is a very deserving area and nobody is more familiar with the special needs in this area than I am. I understand there is need for civil legal aid in areas that, for instance, deal with the ill-treatment of one spouse by the other, in maintenance and desertion cases, and in cases dealing with the custody of children because in the majority of such cases the wife and children are the victims. In many instances the wife is the partner who has no income of her own and, therefore, she is at a disadvantage. On the other hand, the husband because he is the earning partner has the advantage.
Although I am not dealing with the question of a means test just now, I wish to say that in cases brought before the courts where legal aid and advice is sought by the wife there should not be any question of taking the husband's income into account or of assessing the wife's need on the basis of her husband's income. The Women's Representative Committee made that case very strongly and I wish now to reiterate what they said.
It is accepted that family law must be covered in an early scheme for civil legal aid and advice. The success of the case brought by the Cork woman, Mrs. Airey, at Strasbourg brings further pressure on the Government to make legal aid and advice available in such cases. It is very important that the scheme should not be limited to that area only, needy though it may be, nor should it be limited to the other areas recommended in the Pringle Report or in the interim report of the Pringle Committee. It should not be limited to family law, landlord and tenant matters and consumer protection cases. Confining it to those areas would defeat the whole purpose of the scheme.
In the 1978 Annual Report of the Free Legal Aid Committee they deplored such an approach, an approach based on the limiting of the scheme to specific cases. They see that as creating yet further inequalities and they consider it discriminatory in nature and likely only to aggravate rather than alleviate the present injustice that exists. It would be better to have a limited scheme. Eligibility for aid would be restricted not only by the applicant's needs but also by the category into which the problem of the applicant fell. Indeed, perhaps only part of the applicant's problem or the child's problem would fall within the prescribed category at all. The result would be confusion, frustration and dissatisfaction.
I submit that a lawyer acting on behalf of a legally aided client would be severely impeded in his duty to give the sound professional advice he would be in duty bound to give by the dictates of this scheme. This, in my view, would defeat the whole purpose of the scheme. I suggest that nine years' experience in providing voluntarily a scheme of legal aid and advice for those without the means to pay and nine years' experience in highlighting the need for a comprehensive State scheme puts FLAC in the best possible position to advise us at this juncture. They have handled 23,000 cases of need in which successive Governments have failed to meet their responsibilities. The experience gained by the students and the solicitors involved in FLAC is of service at this point. We should heed that experience and that point of view. I want to pay a very sincere tribute to them for fulfilling such needs in our society and for the devotion and the obvious zeal they have brought to their work under very difficult circumstances.
They tell us that 43 per cent of the cases they have dealt with were family law cases. They advance reasons for this, as the greater awareness brought about by recent family legislation and the growth of the women's rights movement. That is one reason why family law cases are more numerous than others. There is also a very interesting point made by them. They maintain that it has been found that family problems are more readily identifiable and more easily received as legal problems than some of the other problems that people have in the circumstances in which they seek free legal aid and advice. I submit also the urgency of the physical need involved in some places and an urgent need for help would prompt people to seek aid and advice from whatever source is available in this area of family law.
I also submit that family problems may well be a manifestation of other problems for which there will also be a legal remedy and which may be causing friction in the homes and from which the family problems may be arising. FLAC handled 477 cases of contracts, 138 cases of hire purchase, 697 cases relating to landlord and tenant law, 452 cases of tort and 296 cases of probate over their nine years in existence. They recommend all those cases as meriting inclusion in a comprehensive scheme of legal aid and advice. They see this comprehensive scheme of legal aid as the only solution to the problems in all the areas they have covered during their nine years in existence.
Their view is very strongly reinforced by the Incorporated Law Society, who have made a very strong submission in this area for the implementation not of an interim scheme, but of a full comprehensive scheme of legal aid and advice. They make a very desirable suggestion also that the scheme, as well as being available to eligible people in the District Court, the Circuit Court, the High Court and appeals from those courts to the Supreme Court, should also be extended to quasi-judicial cases, appeals boards and so on. That is a worth-while suggestion.
The Pringle Committee in their report suggest the establishment of a legal aid board and recommend that that board have responsibility for the day-to-day administration of the scheme of free legal aid and advice, that it be comprised of a chairman and 14 members, six of whom would represent the legal profession. They suggest as part of their responsibilities that the board should engage in the dissemination of information about the law to the public in general and that they should evaluate the results of this work. They go on to say that if this evaluation were to indicate a need for any reforms in the law it would be a matter for the free legal aid board to bring this fact to the attention of the appropriate body. I regard this as a vital role for the free legal aid board.
There can be no estimate at this stage of the depth of unmet legal needs in our society. Constant research and review will have to be an essential function of a board established to administer the scheme. I would be very concerned that the board would not become bogged down in day-to-day work which could perhaps be done effectively by properly constituted legal aid centres. We have had experience of other boards, some recently established, such as the Planning Appeals Board, which already has long delays, a pile-up of work and which is coping with arrears of work. It would be fatal in the area of free legal aid if delays occured. They would constitute an injustice to the people concerned.
The report suggests that a panel system be established, that legal aid, advice and assistance be provided two ways, by a panel of lawyers in private practice who would opt for inclusion in the scheme and that that advice would be available at legal advice centres. I believe that the way to operate this scheme and to get it off the ground at an early stage would be to become involved in a panel system. It is very important that the panel system get off to a good start.
We have had the experience of the scheme for criminal law which is now in a shambles. I ask the Minister and all those concerned to ensure that the same problem will not arise with regard to civil legal aid. The panel system should be so constituted that the law centres could refer the main body of the individual cases to the solicitors operating in the area, that they would have free facilities to do this and that they could concentrate on test cases and on a more general aspect of a community service in the particular community in which they would be operated. I fear that a system like this could get bogged down in individual case work and could fail to focus attention on the need for social reform.
The report recommends the establishment of six community law centres as a start. I suggest this as a very minimum. There is undoubtedly need for a total nationwide network of law centres. I suggest that a legal aid board should give priority to the completion of this nationwide network of community law centres giving the greatest possible autonomy to each individual centre consistent with the whole principle of accountability.
FLAC point out to us that the limitation of a panel system are that it would be designed to provide in the main the financial incentive for lawyers to take the cases of poorer clients and that it would not in fact be designed to take legal services into the communities of the people who need them. They point out that solicitors traditionally have established their offices in business areas in the towns and the cities and have made their services available at business hours to facilitate their paying clientele. In the present system they are unavoidably removed geographically in terms of opening hours from the people for whom the FLAC scheme of civil legal aid and advice has been designed. In many cases they have little familiarity with many of the problems of the lower income groups. As things stand the people who man such a system, as they do, exist for the middle and upper income groups.
For the future lawyers must be encouraged to acquire the skills required to deal effectively with the cases of people of no property. These are skills in family law, housing, social welfare, employment and so on. They must also be kept in direct touch with the social services and with the personnel and the agencies who operate in the field of social services. I have heard very concerned solicitors complain of this vacuum in the social services scheme. They do not know to where they should refer their clients who may need advice from a marriage group, a welfare officer or a social worker. There should be a direct link between and accessibility to the solicitors themselves, the law and advice centres and other social services. It seems desirable that, in so far as is possible, the law centres, the social service centres and the community advice centres should be housed under one roof.
The law faculties have in the main been the preserve of the middle and upper classes up to now. This is unavoidable because of the high cost of legal education which limits it to those sections of the community who are comfortably well off. The cost of third level education, and even second level education, is often prohibitive for those for whom we are hoping to provide the scheme of civil legal aid and advice, but that possibly is a matter for another debate. Suffice it to say now that higher education grants are insufficient. Maintenance grants at second level may be necessary in certain cases, and definitely the position obtaining now under which higher education grants are not tenable at professional law schools makes law a very exclusive profession indeed. That situation must cease for the future. Law, like the other faculties such as medicine, exists for all the people and in so far as we can do it, it must be made accessible to all the people and more particularly to the section who need this protection most and who are the very cases who have been deprived up to now. Access to it must be simplified and the veil of mystery must be removed. Very many people never dream of asserting their rights in law because of fear of the law and that must cease. Steps must be taken to make the law relevant for all the people.
Coolock Law Centre in Dublin, established in 1974, is the only Irish model we have. It was established for three basic reasons: (1) to provide a full-time legal service for poorer individuals in the community, (2) to examine and organise with the local people in the area on issues arising from the case laws in the law centres where individual solutions to the problems would be either legally impossible or satisfactory only in the short term, and to adapt the services and resources of the centre accordingly, and (3) to promote the knowledge and awareness of legal rights within the community. The first community law officer was appointed in 1977, and to my knowledge the work that he has been doing since then has been of an excellent quality. He has interpreted his role as a community law officer in organising citizens' advice sessions on matters such as social welfare, something which is very relevant to the community in the area; he has brought claimants together and enabled them to challenge their own cases and to help others with their cases. He has done very important work in obtaining group support at meetings for deserted and battered wives. He has run citizens' advice courses on labour, family law and social welfare law, and he has published leaflets on all these topics.
These are the areas most relevant to the poor and deprived. Social welfare may not readily be seen as an area in which the law would be relevant, but in that regard at present appeals officers make decisions arbitrarily which are final and from which the applicant has no redress. They are based on material to which the applicant has no access and there is no question of revealing the basis on which the decision is reached. This aspect of social welfare is in the category of wrongs which could be put right by group pressure and which may be challenged legally also.
I do not apologise for quoting FLAC because they are one group of persons with experience in this area. I quote from FLAC Report 78, page 30:
The basic aims of a neighbourhood or Community Law Centre can be summarised as follows:
(1) To bring lawyers out into the communities and the neighbourhoods to be available to act on behalf of the people of that community or neighbourhood.
(2) It would be open day and evening.
(3) It would provide programmes of community education and would assist with the relevant legal skills—community development projects of self-help.
(4) By specialising in areas of law of interest to their clients, the lawyers in the Law Centre would give their clients a very good service.
It is vitally important, if the geographical and psychological barriers to equal justice are to be removed along with the financial barriers, that Law Centres are not regarded as an experiment; for example, one, two or three Law Centres run by FLAC will just not be enough. The Law Centre in Coolock run by FLAC can only cater for the people of Cooklock. There must be a sufficient number of Law Centres to serve each community, throughout the country.
They talk about community identity and they say:
A Law Centre which does not have community identity, community involvement and community management will not be perceived as a service for the individual and group every bit as independent and committed as any private lawyer, but with greater assets. Unless this is realised we cannot hope to eradicate the justified belief that there is one law for the rich and another for the poor.
That is the only experience I can refer to in this country. Regarding the experience in other countries, in so far as time permits. I will refer briefly to the experience in America. In their book Dilemmas of Social Reform, Poverty and Community Action in the United States, Peter Marris and Martin Rein speak of the legal services programme in that community, and I quote:
The Legal Services Programme is difficult to evaluate quantitatively; not all the cases are taken up to courts; not all the judgements are in money.... It does seem certain, however, that both on its own terms of making available to the poor good law and good lawyers, and on the broader terms of breaking the institutional barrier to people getting out of poverty, the programme should be a marked success. It was also the only programme to induce widespread institutional changes, both in the practice of welfare departments, and the legal profession itself.
The inauguration of hundreds of new neighbourhood legal services.... had a far-reaching effect on the practice of poor law. Many private legal defence organisations soon shifted some of their resources into the poor-law field.... The Law Students Civil Rights Research Council began to recruit hundreds of law-student volunteers to work with welfare rights groups and to perform legal research for attorneys representing recipients. Moreover, OEO created a new kind of legal personnel—non-professionals trained in special facets of the law who were able to extend the reach of the neighbourhood legal services programme. Hundreds of poor people were recruited and trained to perform various kinds of ‘lay advocacy' tasks.
University law schools, too, responded to these changes, founding research and advisory centres on legal aspects of social welfare and housing policy. ‘The ferment also affected law school curricula—new courses in poverty law were introduced in dozens of universities, and some two thousand law students registered for them in the 1965-7 academic years.'
We are ten or 12 years behind but some of these results could be achieved from the establishment of law centres here and we could then look forward to a much more egalitarian future for the State.
The Pringle Committee recommend that the scheme should cover hearings before tribunals as well as before the courts. There has been a fault in the English system in this regard so I would suggest that it is something the Minister should pay attention to in establishing the scheme here.
I should like to deal briefly with the question of eligibility for the scheme so far as finance is concerned. The report recommends that eligibility should be based on disposable income and the suggestion is that this income would range from £500 for full eligibility up to £2,000, beyond which there would not be eligibility. There is mention, too, of contributions commencing at £1 for advice and increasing to £10 for aid and that the amounts would be graduated by reference to the level of the disposal income of the client. It is very important that means tests in this area should be generous and related to real money values. It is important, too, that the funds available for the scheme should not be squandered on an elaborate means test system and that use be made of the existing criteria. Certainly, people who are medical card holders should qualify automatically under the sort of scheme I am advocating. The Incorporated Law Society recommend that such people would make no contribution at all. That submission is worthy of note.
In addition to a means test there is a question of a reasonableness test. I suppose this is to be expected in an area in which the expenditure of public funds is involved but in no way should this be a barrier to test cases, to cases taken for the purpose of challenging a practice or for establishing a precedent which would be of benefit not only to the individual concerned but to all those concerned similarly.
The committee's reference to consideration being given to cases of possible social importance is an indication that this is the way they wish the scheme to be operated. Consequently, I would ask the Minister to take note of that recommendation.
One-third of the expenditure on the British scheme has been spent on its administration. We must do our best to avoid a similar situation here. Therefore, we must set out to reform the procedures and remedies before the courts once the proposals of the committee are implemented, as I hope they will be very soon. We must endeavour to get the best value from the money spent and to ensure that the public have access to simple and fair legal remedies and that they are aware of their rights in this area.
The scheme should be comprehensive and there should be no effort to work it in conjunction with, for instance, the existing voluntary scheme. A partial State scheme working side by side with the existing voluntary scheme would produce an untenable situation in that some of the professionals working in the area would be paid for their services while others would be giving their service voluntarily, depending on the nature of the cases with which they were dealing. The voluntary organisation point out that despite providing full advice and assistance, many of their clients are faced frequently with other expenses, for instance, expenses involved in the subpoenaing of expert witnesses. In that area there is no substitute for an effective State scheme that would meet all the expenses involved in the pursuit of justice. The voluntary body have established effectively the need for a full State scheme and that call has been backed up by the Incorporated Law Society while the Pringle Report is strongly in favour of such a scheme.
There can be no question of the Minister settling for an interim scheme or for a partial scheme, neither of which would bring about the situation we require. The cost involved is surprisingly modest. It has been estimated that the cost of a partial scheme would be £1 million while it would cost £2 million for a comprehensive scheme based on the recommendations of the Pringle Report. In terms of present-day values and compared with the amount we are spending in other areas and having regard to such losses in revenue as £8.5 million this year by way of the abolition of wealth tax, the cost of a free legal aid scheme is very small. Consequently, the expense involved cannot justifiably be put forward as a factor for not introducing such a scheme. It is only a comprehensive scheme of legal aid that will lead to a greater measure of equality for the citizens. The Minister, in implementing a full scheme, has the power to bridge the gap that exists between the law as it applies to the poor and the law as it applies to the rich. There must be no question of settling for a scheme that would mean only partial justice. We must have a comprehensive scheme of legal aid and advice.
