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Dáil Éireann debate -
Tuesday, 22 Apr 1980

Vol. 319 No. 9

Private Members Business. - Civil Legal Aid Scheme: Motion.

I move:

That Dáil Éireann rejects the administrative scheme for Civil Legal Aid which the Government is seeking to implement because

(i) it has no basis in legislation and therefore cannot create a right to legal aid and establish an independent Legal Aid Board to administer it,

(ii) it is not a comprehensive scheme,

(iii) it is not a free scheme,

(iv) it would deny a choice of solicitor to those seeking legal aid and introduce a dispensary system of legal services for them,

(v) it would discriminate against rural Ireland and those living in small towns

and calls upon the Government to introduce immediately the necessary legislation to establish a comprehensive scheme of legal aid along the lines recommended by the Pringle Committee.

This is the second motion on civil legal aid which I moved in this House on behalf of the Labour Party urging the Government to implement a comprehensive scheme of legal aid and advice in civil cases along the lines of the scheme recommended in the Pringle Report. The first such Labour Party motion was almost exactly two years ago, on 9 May 1978. We tabled that motion four or five months after the issue of the report. A further 12 months elapsed from the date of that debate to May 1979 when the Government spoke further on the question of legal aid and announced their plans to implement what they described as a scheme of legal aid based generally on the comprehensive scheme recommended in the Pringle Report. That long delay can be said to be indicative of the low place civil legal aid occupied in the Government's order of priorities.

Why the elimination of such a fundamental injustice amounting to the denial of access to the protection and remedies of the law to those who do not have the wherewithal to pay for it, should not have been dealt with more expeditiously is very difficult for anybody with any conception of fair play to un derstand. This is particularly so in the light of the very detailed recommendations outlined in the Pringle Report for the introduction of a comprehensive scheme of aid.

While the Pringle Report made recommendations for an interim scheme, it is very clear to anybody studying the report, that they favoured very strongly the implementation of a comprehensive report. They issued an interim report only because it was part of their terms of reference. As I said, they recommended that the comprehensive scheme be based on an Act of the Oireachtas, that it should establish civil legal aid boards to administer the scheme and that law centres should be operated in conjunction with a legal aid panel of lawyers in private practice in respect of all types of civil court proceedings and tribunals. That scheme was costed at £2 million per year, a remarkably low figure in terms of the money spent on services generally.

Now that the Minister has finally placed a scheme before the Houses of the Oireachtas we find it is based neither on the comprehensive scheme recommended in the report nor does it provide anything resembling equal access before the law for citizens of inadequate means. That is why this second Private Members' motion by the Labour Party has been tabled. Our first objection, as our motion indicates, is that it is not based on legislation. There is no doubt that the Pringle Report recommended that any scheme envisaged by them would have its basis in legislation passed through both Houses. The Minister's scheme does not establish a right, founded in law, to legal aid nor can the board have the independence essential for the purpose for which they were set up and for the work they set out to do.

The Pringle Committee provided draft heads of a Bill on the last page of their report. If the Minister had given the subject the importance it merits he could have used or modified those draft heads. This would have facilitated a full debate in the House and would have made the Bill open to amendment. That sort of discussion, amendment and input of views on legal aid is vitally important in a scheme which purports to cater for people who hitherto have not been catered for, and to meet needs in our society which so far have not been met. Instead, we have a scheme which has been described by Law for All, a body eminently qualified to pronounce on the scheme, as inoperable and a totally inadequate response to the pressing need for legal aid. Before considering in some detail the scheme the Minister seeks to introduce, may I turn to some of the recommendations in the Pringle Report which have been glaringly ignored in the Minister's scheme?

The committee were very strong on the recommendation that the scheme, as well as being concerned with the provision of legal aid and advice, should be concerned with the dissemination of information about the law and with research into establishing the nature and extent of hidden legal needs. They were also strong in saying that the board should make an analysis of the results of their work with a view to making appropriate recommendations in relation to law reform. That is a very important aspect of the work of a legal aid board.

We are hoping to deal with bringing the process of the law to the people to whom it has been denied hitherto. If we have a proper scheme we should be meeting new needs and identifying legal needs which up to now had not been identified because the people concerned did not have the capacity, the know-how or the money to bring their cases before a court of law or to seek legal advice. It probably did not occur to many of these people that some of their problems could be interpreted as legal cases. We are dealing with a very new area and we are hoping in any scheme of legal aid to cater for people who have hitherto been denied their rights or denied access to the process of the law. For that reason it is very important that this analysis be done and that the information a board would glean in their day-to-day work, the meeting of new needs, the evaluation of the extent and depth of these needs, should be capable of being translated into proposals for law reform. There is no means within the present scheme whereby this very important aspect of the work can be catered for.

The Pringle Report recommended that there should be a considerable degree of flexibility in the overall approach to the scheme. This is very important. We should have in the scheme an allowance for something we have not come up against before, a scheme that would be capable of being interpreted generously in favour of the people to whom we would hope to bring the process of the law. That report recommended that legal aid and advice should be co-ordinated with all the social services. All bodies who have reported on the need to set up law centres were adamant that there should be close links between law advice centres and other social services.

As I stated in this House two years ago when speaking to a Private Members' Motion, in private practice there are quite a number of solicitors who have not access to social services. In other words, they have to deal with cases which should be operated by the social services. At present there is not a link between them. I do not think that the proposed scheme of the Minister will strengthen any link there may be or make availability of the social services any more realistic for people going to legal aid centres.

There is no provision in the Minister's scheme to facilitate the taking of test cases by social groups in the community. Far from facilitating this type of action, it appears to me that the Minister's scheme sets its face completely against test cases. Indeed legal aid would be refused to a body of persons who would benefit from a test case for which legal aid would be given. This is a very short-sighted and narrowminded approach to the problems of people on whose behalf a scheme of free legal aid should be available anyway.

The Pringle Report recommended that a more flexible approach should be adopted to the means test. A very rigid means test is imposed, but I will deal with that at a later stage. It seems to me that in any new scheme such as this there should be a much more flexible approach than the Minister's scheme envisages. Indeed it seems to me the scheme is completely inflexible as far as the means test is concerned.

The Pringle Report recommended that applicants should have a free choice of solicitor or counsel, and this is where the Minister's scheme falls down badly. There is no provision in it for a free choice. There is a fundamental difference between availability of recourse to the law in this scheme for those who have inadequate means or who are without any means and those with the financial capacity to engage their own solicitors or counsel. The Minister's scheme is very limited. It will deprive people of inadequate means of availing of legal aid to the same extent as those with money. If we are serious about bringing the protection of the law to people of inadequate means we should not have the blatant difference in the Minister's scheme between poor people and those with means.

I will go into the Minister's scheme in detail and deal with some of the defects I see in it. I have been helped in doing this by the sub-committee examining civil legal aid, the Law for All Committee. We are indebted to them for the detailed work they have done on the Minister's scheme. I agree totally with the criticism they level at the Minister's scheme. Their general opinion of the scheme is that it is totally inadequate to meet the need that exists in this area.

Part 1 of the Minister's scheme deals with an area in which the Minister, if he were seriously concerned for the needs of the people who should benefit by a scheme, could have broadened the provision. It is true to say that excluding community groups could work to the disadvantage of people in the lower income group, particularly those in disadvantaged areas. The scheme militates against the taking of test cases on behalf of such people. That part of the scheme should be broadened to enable disadvantaged groups to take legal action to redress some of the more glaring wrongs in society.

Part 2 of the Minister's scheme deals with administration. The proposed board will not be set up by legislation—it is to be a Ministerial scheme and the board will not have the authority or the freedom that a body set up by legislation would have. The Minister would be given a power which to my mind is unusual—I have not been able to do the necessary research on all the other boards set up by Acts of the Oireachtas—and it seems to me that in respect of this board the Minister will have the power to remove a member from office for all the usual reasons, but he will also have the power to remove from office a member whose removal appears to the Minister to be necessary for the effective performance by the board of its functions.

This seems to be a very wide power indeed. I have compared the powers of the Minister in regard to this board with his powers over the Adoption Board set up under the 1952 Act and I have found in the First Schedule to the Act that the Government may remove a member from office for stated misbehaviour, incapacity or failure to attend meetings of the board. They are stated, specific grounds for removal from office of a member of the board, but to give the Minister power to remove a member from the board when it appears to the Minister to be necessary for the performance by the board of its functions is a very wide and vague power. I am not quite sure if such a power as this applies to other boards. I do not think it is the type of power the Minister should give to himself.

There is reference to the question of funding. The establishment of the service throughout the country is a matter in respect of which the board should be and could be given discretion without reference to the Minister in all cases.

With regard to the section in Part 3, the section dealing with legal aid and advice, it is laid down in the scheme that legal advice is excluded in a civil bill case where the amount involved is under £20. Indeed it is laid down also that it is excluded in the case of legal aid for civil bills, that is, where the amount involved is less than £150. I do not know what are the merits of this restriction. It may be thought that legal aid could be sought in respect of frivolous cases. But it seems to me that even in these days of inflation £20 in the case of advice and £150 constitute no mean figures in so far as some of the people we would be seeking to serve under a legal aid scheme are concerned. I am thinking in terms of people on pensions, people in receipt of social welfare, many of whom I am quite sure never saw £150 in their lives. This seems to be a very unnecessary restriction in this scheme. There are several safeguards in the scheme already and it would seem that these £20 and £150 restrictions should not be included.

Of course tribunals should not be excluded, as they are under the scheme, because tribunals and social welfare cases generally are the areas of very great importance, sometimes of most importance and most relevance to many of the people who would be seeking legal aid under the scheme. A lot of the matters which relate mostly to their lives, with which they would be most familiar, in the area in which they would perceive wrong most freely are excluded from the scheme. This should not have happened.

In Part 3 there is provision also that applicants must show that they are reasonably likely to succeed. In effect that places the onus on the legal aid applicant to show, first of all, that he has a prima facie case before he can get to court. I do not think that is correct either. I understand that there must be some restrictions but it would seem to me that this, like many other provisions of the scheme, draws a distinct line between the type of legal service that would be available to people who seek legal aid as opposed to those who can afford to pay for it.

Test cases are excluded also. That is a totally unwarranted exclusion because they constitute the method by which a lot of wrong can be redressed. To exclude test cases from a scheme such as this, to make it impossible to get legal aid, to qualify for legal aid for the purposes of a test case, or in the case where a group of people may benefit from the success of a case mitigates against the righting of some of the deeper wrongs in our society and is certainly against the whole spirit of what a legal aid scheme ought to be.

Then there is the outrageous suggestion that the applicant, or his lawyer, should inform the other side that he has actually applied for legal aid on behalf of his client. Certainly it is a delaying tactic. I do not see how it can possibly be necessary to the satisfactory working of the scheme. It constitutes a grave invasion of the privacy of the individual seeking legal aid. In any scheme such as this above all we must always have regard to the dignity of the person who must rely on a scheme of legal aid to have redress before the law. The process of the law is slow enough as it is; we are all already aware of that. But the requirement that a solicitor on behalf of a client must inform the other party that the application is made, and further inform the party again of the other party to the case that legal aid has been granted suggests an even bigger invasion of privacy and an unwarranted delay in processing the cases of legal aidedclients; I think it is twice that the approach has to be made to the opposing side. I do not see the necessity for letting the opposing side know at all. It is against the spirit of any scheme such as this that the opposing side should know that legal aid is applied for and again that it has been granted. Of course the position is that the opposing side can object, can state reasons that legal aid should not be given; possibly it would be in the interests of the opposing side to object. Even if it were not, there is certainly the over-riding question of delay and of invasion of privacy in regard to this. It is an outrageous inclusion in the Minister's scheme as laid before the Houses of the Oireachtas.

There is also the question that the board will not grant a certificate in relation to any proceedings taken in a court other than the lowest court having jurisdiction in relation to these proceedings. Again there is a distinct difference being drawn between people who have to apply for legal aid and those who can afford to pay their own legal costs. As far as I can see there is no discretion given the board in this regard, no discretion to waive that requirement; it is imperative that the proceedings are taken in the lowest court of jurisdiction, particularly where the question of jurisdiction of the court is not revised, where the jurisdiction is so low and where it can have a detrimental effect. I am thinking here particularly of the question of barring orders as they apply to family law cases, where a barring order in the Circuit Court is limited to three months. That is the limit of the redress of a person who must rely on legal aid as opposed to the person who can take his case to the High Court. The same question arises in regard to maintenance orders the limitation on the amount of maintenance one can receive. That might be considered to be somewhat unrealistic in so far as people in that category possibly would not be applying for very large sums, or be able to get large sums of maintenance anyway. But it seems that again a distinction is being drawn between the legal-aided person and the person who does not need such, that it is being carried throughout this scheme.

There is a great deal of unnecessary bureaucracy throughout the whole scheme in which any expenses involved in regard to witnesses, experts and so on must be approved by the Minister for Justice and presumably also by the Minister for Finance. One can envisage this being a very slow process, that the already slow process of the law will be rendered slower still in the case of those people who would seek advice under this scheme.

Then there is the question of the law centre. Law centres are very limited. I shall have more to say about them if time permits. For example, if the law centre decides that a person has no case there appears to be no provision for the applicant appealing that decision; if there is no case on financial grounds there appears to be no provision for the applicant appealing his case. Indeed this runs throughout all our laws as they apply to other matters. Neither is there any provision for the applicant receiving a detailed statement of the reasons for his case having been turned down. That runs through all our schemes—the social welfare schemes, in respect of, say, applicants for unemployment benefit, disability benefit, who when their appeals are refused by an appeals board generally receive a blanket statement saying they are refused. There is the same thinking running through this scheme, that an applicant has no right to know why his case did not succeed nor is he afforded any facility to appeal his case directly in the event of its being turned down at the outset.

I should like to say a few words in regard to financial eligibility for the scheme. There is the question of the resources of both spouses being taken into account. That might be considered to be a very reasonable way of handling things, particularly where the spouses are living together or, even where they are living apart, if one is being maintained by the other. But it is not stretching the imagination too far to maintain that there could be cases where both spouses might not agree, where the spouse who had the income might not be at all disposed to financing the other spouse's case. We should treat people as individuals in their own right and not suggest that because they are spouses they are somehow inextricably mixed up and have no visible individual interests.

There is provision for income for qualification for the scheme to be reassessed while in receipt of legal services or within a reasonable time thereafter, Section 5.2.8 of the Scheme of Civil Legal Aid and Advice allows for higher contributions only if the income has gone up. There seems to be no corresponding allowance in the case of one's income decreasing. The whole thing is punitive and works more or less to prevent people from getting legal aid rather than facilitating them to qualify.

Regarding payment by instalments, except in very exceptional cases this is not allowed. This again is a hard-line attitude particularly here where there is already a very rigid means test. The Pringle Committee in the case of income as opposed to capital stated that payment could be made in instalments spread over a two-year period.

The scheme suggests that the only redress open to people under it is the service of solicitors in the law centres. Eligible persons are qualified without regard to the area from which they come. That is fair enough, but it could work towards the establishment and retention of a limited number of law centres where people seeking legal aid would be forced to travel long distances to seek legal aid, if they had the capacity, financial or otherwise. While there is some very limited choice in so far as they may go to any law centre, there is another punitive provision that if they go to a law centre other than that nearest to them and the consequences are higher costs, they could themselves be liable for those costs.

There are several restrictions running right through this which are not consistent with the spirit of a free legal aid scheme. The board are allowed to establish some part-time services in addition to the law centre. I do not know what is envisaged here, but it would seem that part-time services for the provision of free legal aid would not be a satisfactory way of going about it. People providing part-time services, were they of very high calibre whose work-load was already very heavy, could be expected, without any reflection on themselves—or perhaps in danger of bringing reflection on themselves—to give minimal attention to legal aid cases.

The Minister has proposed to set up consultative committees. It is difficult to know what is the purpose of these consultative committees. The idea is a good one if they are to be given some definable function, but under this scheme the consultative committees have no function and no power. They may talk about cases but there is very little else they can do to assist in the administration of this scheme.

Regarding applicants' qualifications for inclusion under the scheme there is the objectionable provision that lawyers operating the scheme are charged with notifying the board of any change in the applicant's means or any developments which might render the applicant ineligible for legal aid. That is not consistent with trust between a lawyer and his client. Under this scheme a lawyer is placed in a position where he would have to watch his client very closely as the client relates details of the case to ensure that there is no improvement in means. The client has to watch himself while speaking to the lawyer. If a client informs a lawyer of any minor improvement in his means it is the lawyer's job to notify the board and so deprive the client of his legal aid. I agree that in a limited scheme, confined or means tested, there would have to be some control or some knowledge of the income of those qualifying, but to place the lawyer in the invidious position of having to notify the board and also of collecting the costs militates against the building up of trust and confidence between lawyer and client. Also it puts the client in a position very inferior to that of the client who has the money to pay for his own case.

I would like to deal with the means test. The figures laid down for the assessment of what is determined disposable income are those which were worked out and listed in the Pringle Report issued two years ago. The deductions in respect of dependants, travel to work, rent and so on were less than realistic even then. To suggest today that the deduction in respect of an adult dependant would be £9.50 per week and for a child dependant £4.75 per week is totally unrealistic. We talk about allowances for such persons under the social welfare code and how inadequate they are and how out of touch with what is held to be adequate and reasonable in other schemes. Even compared with the Social Welfare allowances, these allowances of £9.50 for a spouse and £2 for travel expenses to and from work do not stand up. One gallon of petrol costs almost £2 now. The allowance for hire purchase payments is £2. Hire purchase payments for people applying for aid under this scheme can be a very big part of their initial outlay. They do not have the capital to buy things and HP is part of their lives. The means test does not bear any resemblance at all to what it costs to keep dependants today. Here again is the same punitive thinking. Income tax is deducted in respect of the past year. With inflation, income tax might be expected to be higher in any year than it was in the previous year, although I hope the trend will be the other way in future. The income itself is based on what might be expected to be earned in the following year. Therefore, we have two standards here, one in respect of outgoings and one in respect of income, all geared to maximise the income which the person applying for legal aid is deemed to have.

This scheme is by no means a proper one. It denies clients applying for legal aid a choice of lawyer. It denies them the very areas of action, such as social welfare, where it might be very important for them to have a tribunal. It is not a free scheme and it is severely and unrealistically means tested. Another provision in the means test is a 25 per cent reduction per year for the value of a car which might be used in the course of the applicant's work. Every effort is made to bring the income of the person applying for legal aid up as high as possible.

The scheme is totally restrictive. It will in no way provide a scheme of aid for people who need assistance from the State on a comparable basis to schemes available to other sections of the community. It fails on all fronts. It has no basis in legislation. It will be a dispensary type scheme for the poorer sections of the community and it will discriminate against rural Ireland because there is no way in which it can be made available to people in remote areas. For all these reasons I ask the House to reject the Minister's scheme and to implement this comprehensive scheme for legal aid based on the Pringle Report.

I move amendment No. 1:

To delete all words after "Dáil Éireann" and substitute the following:—"expresses its confidence in the Minister for Justice in relation to the exercise by him of his functions in regard to the Scheme of Civil Legal Aid and Advice."

I should like to make one preliminary point before dealing with the specific criticisms of the civil legal aid scheme set out in the motion. I wonder if the Deputies who framed the motion have read the published civil legal aid scheme at all. I say that with all the respect I can muster for Deputy Mrs. Desmond. The bulk of what has been said is simply not true. This is readily ascertainable.

For instance, it is not correct to say, as paragraph (i) of the motion does, that a non-statutory scheme cannot create a right to legal aid. It is quite well established that a scheme of this kind which has been approved by the Government, published and presented to both Houses of the Oireachtas does create legal rights. I should like to draw the attention of the Deputy to the scheme of compensation for personal in juries criminally inflicted which is also a non-statutory scheme. That scheme was the subject of consideration by the High Court in 1977.

The case in question was Hayes versus the Criminal Injuries Compensation Tribunal when an applicant for compensation sought an order, certiorari, to challenge a decision of the Criminal Injuries Compensation Tribunal. Not only is it clear from this case that persons have a legally enforceable right to compensation under the scheme but that it was never contended by the tribunal or the State that the position was otherwise, despite the fact that that scheme is not only non-statutory but also that compensation under it is on an ex gratia basis. It could be argued that the legal aid scheme is more definite in creating rights since the assistance is not being given on an ex gratia basis.

It is also not true to say that the Legal Aid Board cannot be independent without a legislative basis. The Board will be independent from me and from my Department. The scheme specifically prevents me from exercising any power or control in relation to any case with which the board is or may be concerned. The board will operate in precisely the same way as if the scheme was a statutory one. It is inconceiveable that I, as Minister for Justice, or any other Minister for Justice, would attempt to interfere in the performance of the board's functions in breach of the terms of the scheme.

In stating my complete confidence that the non-statutory nature of the scheme does not deny any person his rights, or in any way affect the independence of the board, I am not seeking to justify keeping the scheme on this basis permanently. It is my intention that the scheme should be put on a statutory basis as soon as a reasonable period of operational experience has been gained. That is a perfectly reasonable approach to an entirely new and complex service. It is also an approach which will enable the scheme to become operational, by which I mean services will be made available—far more quickly than if the very extensive and complicated legislation had to be enacted beforehand.

It is also wrong to say that the scheme is not comprehensive. I do not want to get involved in semantics but among people who are familiar with the legal aid schemes of other countries our scheme could only be described as comprehensive. It is comprehensive in the sense that it is based on the comprehensive scheme outlined in the Pringle Report as distinct from the interim scheme outlined in that report or, in other words, in the sense of not being confined to particular areas of law.

In certain respects—for example, eligibility limits—the scheme is more comprehensive in its provisions in comparison with the committee's recommendations. Certain proceedings are excluded on the grounds that they are inherently unimportant, or that the provision of legal aid in such cases could lead to abuse in relation to the fundamental purpose of the scheme. I must emphasise that there is no scheme anywhere in the world of which I am aware that is so comprehensive as not to exclude some cases. Even in countries which have not the same limitations as to resources as we have, it is common practice to exclude certain categories. I wonder can the movers of the Labour Party motion be serious in suggesting legal aid should be free? Of course the scheme is not a free scheme. It was never intended to be and the Pringle Committee did not recommend that it should be. No country in the world has a totally free legal aid scheme for the very good reason that such a scheme would be an invitation to economic waste and abuse of the legal and judicial institutions.

I shall have more to say about the need to protect the taxpayers' interest, but quite apart from the financial aspect of providing a totally free service, it is obviously desirable to have some system of contribution so as to avoid the demand for and the granting of expensive services which on any just basis are unnecessary or likely to be abused. The system of contribution provided for in the scheme is a just one and in some respects it is more generous than what was recommended in the Pringle Report. It enables a spouse's income to be ignored in a family law case and also enables the board to waive contributions in certain cases of severe hardship.

I am aware of the criticisms which have been levelled at the scheme on the ground that services under it are to be provided exclusively by salaried solicitors in law centres rather than partly by solicitors in private practice. Let us be very clear about this. The Government decision in this regard was aimed principally at keeping the financial effects of the scheme under control. We were concerned with the possibility that without this feature the scheme might take off, as it were.

I do not think it necessary to spell out for Deputies how this could happen, nor do I think it necessary to be apologetic because the protection of taxpayers loomed large in our considerations of this matter. That aspect apart, I am fully convinced that the provision of services through centres is the best way of meeting the real needs of our people.

The Pringle Report stressed the suitability of centres for serving the needs of people in less affluent circumstances, particularly those residing in larger population centres, in other words, the majority of working people and their families who, I anticipate, will comprise the vast bulk of beneficiaries under the scheme. The Pringle Report mentions the reluctance of socially underprivileged persons to approach solicitors because they often find the atmosphere of a solicitor's office intimidating, creating, as it were, a psychological barrier between socially deprived clients and the solicitor. The decision to concentrate on providing legal aid and advice through centres was a conscious one and a very conscious attempt to make these services available close to the source of demand, whereas traditionally solicitors' offices in this country are generally located in the central business areas in towns and cities.

I do not accept the specific criticisms made in paragraphs 4 and 5 of the Labour Party motion. It is not correct to say that a choice of solicitor cannot be provided under the scheme. The scheme at section 7(1) formally sets out the right of an applicant to a choice of solicitor and goes on to deal with the machinery for providing such a choice. To say the least, it is not helpful to use such expressions as "dispensary system". I cannot see what purpose the movers of the motion could have in trying to create a bad image of the type of service to be provided even before the centres are operational. Apart from being discouraging to the Legal Aid Board who are charged with the operation of the centres, this view is also totally lacking in appreciation of present trends in the provision of legal services.

In this regard I would point out that one of the most important recommendations in a recent UK report, that of the Royal Commission on Legal Services, was in favour of the extension of the centre system in that country. The summary of that report states:

The Commission remarked that the effect and influence of law centres had been out of proportion to their number. They had proved their worth and were here to stay.

We are not arguing against law centres. We want both.

I was trying to come to grips with what the Deputy was arguing about because it is obvious that whoever advised on the putting together of this motion would do well to read what has been published on this subject.

The summary of the report further states:

However, they were found to operate under a number of disadvantages, in particular that they were often dependent for funds on local authorities with whom their work might bring them in conflict. The Commission therefore proposed that there should be established a system of law centres, to be known as citizens' law centres, financed out of central rather than local government funds and administered under approved guidelines by a small agency operating independently of the government. The functions of the citizens' law centre, which should have a local advisory committee, should be to provide legal advice, assistance and representation to those in its locality, with special emphasis on social welfare law.

As to the number and spread of the centres, I have never suggested that the need for legal services will be met by setting up a pre-determined number of centres. The Government's intention is to meet the need that exists and it will be a matter for the Legal Aid Board to decide upon and establish, with my consent, the number of centres they want. Obviously, they must make a start somewhere and I recently gave my consent to the establishment of two centres in Dublin and one each in Cork, Limerick, Waterford, Galway and Sligo. This does not preclude the board from coming to me at any time in the future for approval to establish centres in other locations.

I would be the first to admit that at the end of the day there may be problems of accessibility in remote areas, but I would point out that the problem of accessibility arises in relation to all State services for people living in rural areas. I have no doubt that these problems in regard to legal aid will be tackled and solved. The most important point is that services will be available to all who need them and qualify in them. Far from decrying the means adopted under the scheme, we can take pride in the tart which has been made in the introduction of an entirely novel service which needs to be approached very carefully because of its serious potential financial implications. I am satisfied that in this scheme we are striking the right balance. It is hardly necessary to say that we must crawl before we can learn to walk.

I understand that the board have made substantial progress in their efforts to get the scheme operational and they are well advanced in the matter of recruiting staff and acquiring accommodation. They share my concern to have services provided to the people who need them at the earliest possible date. It is not good enough to criticise the scheme on the main ground that it does not provide for the same level of service as can be obtained by people who can afford it. That is a simplistic and unreal approach. No scheme could or should put the poor person into the position of the rich man who can afford the best brains at the Bar. The scheme puts the poor person into the position of a person of modest means, as most people are, and such people have to think twice before engaging in legal action. There is no reason in justice why poor people should be different.

I have been very interested in the Minister's remarks. To a very large degree they seem to support and vindicate the stand taken by Deputy Desmond in her very able presentation of her case. The scheme which is now being introduced so belatedly by the Government is a pathetic response to the condemnation of this Government by the European Court of Human Rights. In effect they are establishing a second-class system to provide a second-class service for those whom the Government clearly regard as second-class citizens.

I mentioned the position in regard to the response of the Government to the Airey decision in Europe and it is no harm to remember the background. There was a commitment by this Government in 1977 in regard to civil legal aid. A comprehensive report prepared by the Pringle Commission was in the hands of the Government in December 1977. Despite that and despite the many promises made in the intervening years, nothing whatever has been done by the Government until recently. It is clear to me that, were it not for the condemnation of this Government by the European Court, we would still be getting further promises. Mark you, some of these promises were very specific. I recall one last May where, under very heavy pressure because of the enormous delays that had taken place, we had a specific commitment from the Minister that a civil legal aid scheme would be introduced as soon as practicable, and in any event not later than the end of the current year. The same old story applied thereafter and it is only now, in the year 1980, that we have the bones of a scheme. I suppose that is glorifying the scheme proposed to be introduced—the skeleton of a scheme would be a far better description.

In my time I always regarded the symbol of justice as the scales being weighed evenly between the different litigants in court. Certainly, it is quite clear that the proposed scheme does not provide the necessary balance to ensure that those of inadequate means will be able to face, in court, on equal terms, the opposition of those with substantial means.

I have made a note of the verious points made by the Minister. If I might single out one in that context, it certainly clearly displays the attitude of the Minister and the attitude of this Government—a Government of the rich for the rich. The Minister did not put a tooth in it. No scheme could or should put the poor person in the same position as the rich person in court. In effect, that was what the Minister had to say. Surely it is a condemnation, not personally of the Minister. He is a member of this Government, this Government party who have so long been identified with the rich of this country and have specifically put it on the record of this House that this is their outlook, this is their vision of the future—that those in the position of being rich should retain their advantages in the courts of law which are supposed to dispense equal justice to every citizen of this State.

The Minister defended the situation of not introducing a statutory scheme. He suggests to this House that the fact that the scheme is not administered by way of statute does not affect the right of the person to participate in it. He does not give any answer as to why the Pringle Commission, after three years' deliberation, recommended that there be a statutory scheme and not alone made that recommendation, but actually produced detailed and comprehensive heads of a Bill to be enacted in this area.

The Minister tells this House that the board is entirely independent and that there will be no question of the Minister interfering with it. He neglects to mention to the House that he is the person who has the hiring and firing of the board. He hires them and has full authority at any stage to fire them. Furthermore, he neglects to refer to the clause which I thought he would explain, clause 226 of the scheme, which entitles the Minister, from time to time, to give to the board such general directives as to policy in relation to legal services as he considers necessary. That is the much vaunted independence of this board.

Having talked about the right of the individual and the fact that it is not necessary to provide a statutory basis for that right, he tells us thereafter that it is his intention in the future to put it on a statutory basis and does not explain why. It is all right now to have it on a non-statutory basis—the people are getting a very good deal but it is the intention to have it on a statutory basis in the future. He says he wants to get the scheme into operation and there is no time to put it on a statutory basis. We have had the Pringle Report in our hands since 1977 and he has no time to produce a Bill which the Minister says it is his intention to produce ultimately. How, in the name of goodness, can a Minister come before our House of Parliament and justify his lack of activity in this case and justify the fact that he is introducing this half-baked scheme at this stage, as an adequate response to the needs of the people, as an adequate delivery on the manifesto promises made three years ago?

The Minister then tells us that the scheme can only be described as comprehensive, you might say à la Pringle. Again, he neglects to tell us about the various items that have been excluded—ones that count and would count very much to the person of insubstantial means. Perhaps the Minister might not consider, being of the party that he is, that defamaties would mean too much to a poor person. Maybe, in the Minister's opinion it would not mean anything if a poor person's name is libelled or slandered. The Minister might consider that that is something such a person should put up with, but let the person of rich means who is so libelled and slandered pursue his action. I do not accept that view at all. The name of any individual in this country is entitled to the same protection in the courts—be that person rich or poor. Let us be fair, that aspect was discussed in the Pringle Report but the Minister justified not permitting services to be issued in regard to Civil Bills for sums below £150. The whole idea of this scheme is to protect the small person who would probably be dealing with small amounts in the District Court. When I practised in the district court, its limit of jurisdiction was £50. That figure was increased some time ago and the limit is now £250. Yet, under the exclusion of this scheme which is supposed to be there to help the small person, three-fifths of the cases under the limit of the District Court cannot be availed of by that person who wishes to claim his entitlement in that court. That, again, shows the outlook that one possibly might expect from a Government which puts such store on the protection of the rights of the rich and does little for those of the poor. The figure of £150, despite the enormous inflation that we have had over the last few years, still means a lot to a great many people in this country and the type of problems that they would be dealing with would very often be at a figure of less than that sum.

The Minister then sought to justify the exclusion of private solicitors—of solicitors engaged on a private basis. Here we have come to the nub of the problem. I must be careful—the Minister did not make any case for excluding the private solicitor, but did for excluding the entitlement of the individual to engage the private solicitor. Let us be fair, the private solicitor is doing all right as he is, but the individual who needs his services may not be doing all right, particularly if that individual lives 100 miles from one of these centres which are to be established. What, in the name of goodness, the poor unfortunate is going to do under the present scheme, I am not sure. With the cost of petrol and the amount of money he would have to spend in going up and down for consultations to the said law centre, he would have the amount of his claim spent long before he would ever get a shilling back. Seriously, the situation here is that the Minister is not permitting the individual to engage the solicitor or the barrister of his or her choice. He said he took particular exception to the words "dispensary system" but was this not the reason the old dispensary system was abolished? Because the dispensary system under the Health Acts, established in the poor law days of the last century, had such a poor image among the people the system was abolished, 20th Century thinking came into play and the choice of doctors' scheme was established. What have we now from the Minister? In effect, we have the establishment of a similar poor law system in 1980 when it comes to establishing a legal aid system. Clearly that justified the use of the phraseology by Deputy Desmond. The Minister appears to think that because Deputy Desmond used that term in the motion before the House it will give the scheme a bad image. What Deputy Desmond and I have to say in this House will not give the scheme a bad image. The scheme will have a bad image because it is a bad scheme. It is as simple as that and trying to suggest that an honest and frank appraisal of the scheme by the Opposition is going to give it a bad name is so ludicrous as to be hardly worth mentioning.

There is also the question of availability of the centres. I was particularly struck by the words used by the Minister when he said the thinking behind the scheme was that the centres should be available close to where the demand lies. He spoke about the distance people might have to travel to the centre of a city. I do not know what is the Dublin equivalent of the South Mall in Cork which would be the main area of concentration in Cork. Was the Minister serious when he made that comment? The Minister, no more than myself, is not a city man. Is he talking about somebody taking an 18p bus drive to the centre as opposed to the situation of a person in Ballydehob or Castletownbere or even in outlying areas in the Minister's own constituency, people who do not even have public services to avail of, who would have to hire cars to get to one of the famous centres and who might have to travel more than 100 miles? The Minister tells us that his objective is to make legal aid accessible to the people. Perhaps he is spending too much time in Dublin. He may be getting too urbanised, forgetting his roots in the country. He should remember that he may have to look after those roots again in the not too distant future.

He will not have that problem.

It is always nice to have one note of confidence expressed in this House. How can the Minister suggest that this scheme will make legal aid accessible to the people when only a limited number of centres will be established? I tried to count them when the Minister was speaking and as far as I could tell they total seven—two in the city of Dublin and five others. Is that making legal aid accessible to the people?

One of the major types of cases where legal aid will be sought will be family law cases. In fact, the case brought to Europe and which has forced the Government's hand now was such a case. If one of the parties in a case goes to the office in Limerick, what will happen to the other party? Will that person have to go to Dublin or Cork for aid? Clearly it would be totally unethical and incorrect that the two people would be advised by the same office. I could envisage very embarrassing situations arising, clashes in the centres if the husband and wife came for advice to the same office. We might have a situation such as that which occurred some time ago where two men had a fight. When they finished fighting both of them got up on their bicycles and went as fast as they could to see who would be the first to reach the best solicitor in the area. That kind of situation will happen with regard to this scheme.

The Minister spoke about the UK report and the value of citizens law centres. I am committed to genuine community law centres. I like the notion and I like the reference in the report to the fact that there should be local bodies backing them up. In this instance the Minister is establishing a few centres. In the White Paper there is provision with regard to existing centres and I am glad to see this. However, they are few in number. I presume they will be included in the total of seven mentioned by the Minister. They will not be sufficient to cope with the problem. What is recommended in the Pringle Report and what is recommended by any sensible person who wants to tackle the problem properly is that there should be citizens' community law centres and, in addition, the entitlement of the individual to avail of private services if he so desires. Why is that not being done? It is very simple—it is a question of finance. The Government have not got the money. They made promises in 1977 which they subsequently repeated but they have not the money to carry them out.

The Minister said that we should remember the money has to come from the unfortunate taxpayer and he said the Government had to be careful in ensuring that such money was spent in the best way possible. When promises were made in 1977 about civil legal aid—no more than promises about the abolition of ground rents and other such dream talk—I cannot remember any talk about the cost or the burden on the taxpayers. Now we have the turn of the wheel. In effect, the Minister is saying they cannot provide a proper service because they have not the money while, at the same time, by some sleight of hand he is suggesting that the service that will be provided will be a proper and a good service. The Minister cannot have it every way. The weight of evidence is entirely against him and he would need a lot of legal aid to bolster up his case so as to have any hope of winning because it is quite clear that the service he proposes is inadequate, not properly financed—the estimates show this—and will not be accessible or available to the people who need it.

The Minister is talking about crawling before we learn to walk. The time for crawling is over. The only crawling the Minister should do at this stage is to crawl to the electorate to apologise for the false promises and misdemeanours of the past. The Minister should be now breaking into a quick gallop to make some recompense for this infamous record over past years. He can do so by taking this carefully prepared document produced by a very fine committee presided over by a very eminent judge and implementing it forthwith. Then he would have some justification for holding his head high before those who had come to expect so much from the promises in regard to civil legal aid.

The Minister talks about the moneys involved. So did Mr. Justice Pringle who, in his report, recommended a comprehensive scheme on which he put a label. He also recommended that if the Government could not implement that scheme straightaway consideration could be given to an interim scheme but he made it clear that this was not the proper way to tackle the problem and that his recommendation was a proper, comprehensive scheme. This was priced at £2 million. Surely when the expenditure of the State is so great, running into thousands of millions, and when the borrowing of the State is so great, running upwards to £1,000 million a year, a couple of million pounds to do a decent job would not be out of the way. Even at this stage the Minister should consider changing his tune and forgetting about this patched-up, half-baked proposal which he now seems to want to implement, and introduce a decent comprehensive scheme as recommended by Judge Pringle.

We have an amendment to this motion put down by the Minister in which he asks us to express confidence in him in regard to the exercise by him of his functions in relation to the scheme. It is clear from the whole history of the situation, from the lack of activity on the part of the Minister over a number of years past and from the half-baked scheme he is now attempting to suggest is a comprehensive one, that nobody in his sane senses could express confidence in the Minister for what he has been doing. It is an insult to the House even to suggest an expression of confidence in this case.

On the other hand there is a detailed motion before the House setting forth reasoned grounds for rejecting the present scheme. The Minister had an opportunity to provide an answer to the case made by Deputy Desmond, to provide an answer to the solid points made in that motion and on all counts he failed entirely. It is clear that the individual does not have a right. There is an even more important point: it seems there will be great waste of money on bureaucracy and administration arising from this. If the Minister has not already read it in detail I refer him to the minority report to the Pringle Commission Report in which it was suggested that the whole idea of getting legal aid where a person went to a community law centre was that this should not be necessary, that it was a waste of time. The people in these centres, whether officially or not, will be civil servants paid by the State indirectly—they will be paid out of the grant-in-aid to the Legal Aid Board. Does the Minister suggest anything will be gained by having these people wasting their time filling up forms getting the appropriate certificates from the board? This is something the Minister should consider seriously.

I entirely accept the need for a certificate when private practitioners will be involved ultimately as undoubtedly they must be when this scheme is seen to be the failure that it is. It is important that before any such individual asks to proceed too far, beyond possibly just preliminary advice, that he should have to submit a case to an independent legal aid board to get a certificate but it is totally unnecessary that the board's employees should be wasting time filling up these forms. Surely if they are capable of giving good service to the board it should be part of their functions that if somebody comes in they would be able to give a decision on that point also.

Lastly, and I think this is the real point, this scheme does not give civil legal aid to those who need it in any kind of comprehensive way or in any way which spreads right through the country. It is confined to those who can go to the few centres that will be established and people who cannot afford the fare to reach those centres will be denied their very right to legal aid. Possibly that is the major fault in this system. As a rural Deputy, any part of my constituency will not be within a long distance of one of these centres. I must take very serious objection to that aspect of the scheme, I ask the Minister to think again, scrap this scheme and introduce a proper and decent scheme as recommended by the Pringle Commission.

People could be forgiven if they felt that Deputy O'Keeffe was making a case for the private solicitor, that his only concern is to wreck this scheme if he can possibly do it so that colleagues in his own profession can benefit.

That is typical. The Deputy never misses it.

I will tell the Deputy something through the Chair——

At this stage of the night, where there is only a minute or two left, let us not have any personalities.

It is obvious that there must be control over expenditure and for Deputy O'Keeffe to say that he would have accepted this report in its entirely is too much. I would not accept that because I do not believe that any man could be so irresponsible, when he was responsible for the expenditure on a commission's report, that he would not have reservations about certain aspects of it. I do not accept the sincerity of the Deputy's remarks in this regard. Is he saying that whatever commission he would set up, if he became Minister for Justice, he would accept entirely their report? I doubt it very much.

Debate adjourned.
The Dáil adjourned at 8.30 p.m. until 10.30 a.m. on Wednesday 23 April 1980.
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