I move:
That Dáil Éireann condemns the failure of the Government to provide adequate resources to enable the civil legal aid scheme to be properly developed and expanded. Nothing with concern the present crisis which has led to a virtual collapse of the service, Dáil Éireann calls on the Government to provide an additional allocation to enable all existing centres to deal with their backlog of work and to ensure for the future the provision of a comprehensive range of services, and furthermore calls on the Government to enact the relevant legislation to place the civil legal aid scheme on a statutory basis, based on the principle that all those in need of civil legal aid but who cannot afford it will have access to it.
In December 1974, a committee under Mr. Justice Pringle was established to examine the question of access to law for the underprivileged and to make recommendations as to the type of scheme which would be most appropriate to tackle this problem. The committee reported three years later.
They advocated the introduction by statute of a comprehensive scheme of legal advice and aid to be administered by an independent board appointed by the Government. In addition to administering the scheme, the board would have responsibility for educating the public as to their legal rights and for evaluating the results of their work. Legal services would be provided by lawyers employed in community law centres, supplemented by lawyers in private practice, and the service would be means tested.
The comprehensive scheme was never implemented. Eleven months after its publication the Government were before the European Court of Human Rights defending a claim by Mrs. Josey Airey that the State's failure to provide a scheme of civil legal aid amounted to a violation of her rights under the European Convention. The Court ultimately ruled in favour of Mrs. Airey, holding that the State had:
an obligation to take such positive action as might be necessary in order to secure an effective right of access to the Courts.
It is important to note here that what was established in the European Court was a right, a right of every citizen irrespective of income. In December 1979, the Minister for Justice laid before the Oireachtas a scheme of civil legal aid and advice and the first Legal Aid Board was appointed. State funded services were first provided in August 1980.
In 1980, seven law centres in all were opened, two in Dublin and one centre in Limerick, Cork, Waterford, Sligo and Galway. In early 1981 there were 24 solicitors in all working in the seven law centres. By 1983 there were two extra law centres, one in Dublin and one in Cork and there were 33 solicitors employed altogether. At present there are 12 law centres, four in Dublin, two in Cork, one in Limerick, one in Waterford, one in Sligo, one in Galway, one in Tralee and one in Athlone and there are 28 solicitors altogether employed.
There are well over 3,000 solicitors in the country altogether which means that these 28 solicitors comprise less than 1 per cent of the solicitors in the country. It is a scandalous and ludicrous situation to have about one-third of the population dependent on one per cent of the solicitors in the country. This is even more ludicrous when one appreciates that the 28 Legal Aid Board solicitors spend a lot of their time travelling enormous distances to part-time clinics and courthouses, wasting valuable time which could be more productively used, and wasting money in travelling and subsistence expenses.
The following example will highlight how ridiculous and ludicrous the present scheme is, particularly for people living outside the major cities and it will also highlight how public expenditure is being wasted. A husband and a wife living in Buncrana, County Donegal, have a matrimonial case which is pending in the District Court in Buncrana. Both are dependent on social welfare and both are financially eligible for legal aid. If the wife makes inquiries about legal aid she will be told that she can go along to the law centre in Sligo or, alternatively, go along to the part-time clinic in Letterkenny which operates once a month and which is run by the law centre in Sligo. The wife will, therefore, have to travel to Sligo or to Letterkenny. If the wife is seen in Letterkenny the solicitor in Sligo will have to travel up to see her, thus wasting the best part of the day travelling when he or she could be more productively at work back in the law centre in Sligo and thus also clocking up mileage expenses and subsistence expenses to be paid by the taxpayer.
Assuming the wife consults the Sligo law centre, or its part-time clinic in Letterkenny, the husband cannot do likewise because of a conflict of interest. If he wants legal aid he will have to apply to the law centre in Galway and the solicitor in Galway will travel to the law centre in Sligo to see him, once again wasting valuable time and incurring enormous expense to the taxpayer. When the case comes for hearing, or even if it has to be adjourned, the solicitor for the wife in Sligo and the solicitor for the husband in Galway will have to travel up from their respective law centres to Buncrana, once again wasting time and incurring enormous expenses to the taxpayer. What is happening in these situations — and they are by no means unusual — is that those who are entitled to apply and obtain legal aid are not doing so because of the hassle involved.
At present the law centres in Dublin and many other law centres around the country are only taking on cases of a very urgent nature and urgent cases generally mean situations of serious physical domestic violence, child abuse and kidnapping. If, therefore, one's case is not of an extremely urgent nature it will not be taken on, though the applicant will usually be offered an appointment some three weeks to two months later. Quite understandably, if somebody is offered an appointment weeks or months in advance he or she more often than not will not turn up.
The people who are being seriously affected by the present crisis can be divided into two categories: those who never get to see a legal aid solicitor, and those who do manage to get to see a legal aid solicitor. Those who never get to see a legal aid solicitor are those whose cases are not urgent and who are not prepared to wait several weeks or months for an appointment; those who do not pass the very stringent means test; and those who are put off by the stigma and bureaucracy attached to the means test. There are those who do not bother to apply for legal aid because the nearest law centre is 60 or 70 miles away or more such as in the Buncrana case I already referred to, and there are those whose type of case does not come within the scope of the scheme for example defamation, social welfare or labour law cases.
Those who do manage to get to see a legal aid solicitor are applicants whose case is of an extremely urgent nature in accordance with the Legal Aid Board's criteria. They will generally get to see a legal aid solicitor without too much delay and will generally be provided with a good service by a competent solicitor though, or course, such an applicant could encounter other difficulties associated with the scheme such as the law centre being 60 or 70 miles away from his home, the stigma attached to the means test, etc.
Then there are those whose cases are not urgent and who are prepared to wait many weeks or months for an appointment. A typical example of such a person would be somebody with a matrimonial problem. Even though such a person could be living in an intolerable situation, that person's case will not be treated as an urgent case if there is no serious violence, child abuse, or threat of kidnapping.
If such a person sees a solicitor and the solicitor endeavours to sort things out by way of a separation agreement but fails, the solicitor cannot do any more, that is to say, the solicitor cannot apply for legal aid, which means getting a legal aid certificate for a court case because the case is not of an urgent nature. The Legal Aid Board are only processing legal aid certificates in urgent cases. The solicitor who takes on such a case, which is a very typical case has his hands tied. If he cannot conclude an amicable settlement by way of a separation agreement or otherwise, then there is nothing more he can do because he cannot institute court proceedings. Solicitors in private practice acting on the opposite side of such a case are in a position to do much better for their client because they know that the legal aid solicitor on the other side has his or her hands tied.
Overall control of policy remains vested in the Government rather than the board. The power of amending the scheme is vested in the Minister for Justice and expansion in terms of staff numbers or law centres can take place only with the consent of the Government. There is a heavy representation of civil servants on the board.
When dealing with the functions of the board the Pringle report had attached considerable importance to the requirement that the board should publicise the legal aid scheme. They said that research abroad had shown that, even where a legal aid scheme had been in existence for many years, a high proportion of people in poor financial circumstances were either unaware of its existence or did not understand what it involved. Accordingly, one of the specific functions given to the board was the arrangement of suitable publicity concerning this scheme. However, in their first year the board reported that they felt it would be wrong to invite the public to avail themselves of a service which was already overstretched and which was not being provided with the resources to meet the extra demand which would be generated by the publicity. No publicity campaign has been engaged in since 1980.
FLAC, the voluntary free legal aid centres, have stated that the vast majority of callers to their 'phone-in service were unaware of the existence of the State scheme. The board have been described as providing one of the State's secret services. The failure adequately to publicise the existence of the scheme may of itself amount to a breach of the European Convention obligation to take any necessary positive action in order to secure an effective right of access to the courts.
The board are, and have been from the outset, seriously under-funded. The crisis now facing the civil legal aid service was an entirely predictable one — it was predicted by the Legal Aid Board in each of their annual reports since the establishment of the scheme in 1979.
The Department of Justice seek to place this in the context of overall public expenditure control. In an article on "The Civil Legal Aid Scheme — Scope and Operation", published in the Gazette of the Incorporated Law Society of Ireland, 4 April 1989, Timothy Dalton, formerly deputy chief executive of the Legal Aid Board and now Assistant Secretary of the Department of Justice, wrote as follows:
There is a general awareness that the main difficulty faced by the Chief Legal Aid Scheme is the lack of resources necessary to provide a nationwide service. The Board has been delivering this message in its annual reports over the years and the matter has also been the subject of comment in the media and elsewhere.
Limited funds for public services are of course nothing new at the present time — it is part of the process of putting public finances generally in shape and the Board fully recognises this. The Board has also recognised that, despite the restrictions on Exchequer funding generally in recent years, it was fortunate to be in the position of actually expanding the service during 1985 and 1986.
The board's statement on which the above passage seems to have been based was made in their annual report for 1986, the last report to be published and dated March 1988. Under the heading "Failure to Meet Demand" what the board actually said, at paragraph 3.4 was:—
But of course, the primary reason for the inability of the legal aid service to meet, the demands made on it is that the financial resources necessary to respond to the demand have not been made available. The Board appreciates that an inadequacy of funds to run essential public services is nothing new at the present time and that many would see it as part of the price that has to be paid for putting the public finances in better shape.
However, it has always made the case — and continues to do so — that the situation of the Civil Legal Aid service differs from others in that it came into being just at the time when pressures on public funds became acute. It has not, therefore, been a case of cutting back on an existing provision which was deemed over-generous, but of having a completely undeveloped service caught up in a general policy of public expenditure containment.
In reality, there never was a national legal aid service from which cutbacks could be expected; the service was strangled at birth. As I said earlier, there are now 28 solicitors employed by the board, fewer than some firms in Dublin. Remember, to keep this in perspective, there are 3,500 solicitors in private practice in Ireland.
There are 12 full-time centres; the board estimate that at least 33 are required. There are six centres outside Dublin and Cork. In June 1987, the board chairman, Niall Fennelly, SC, told a seminar on legal services that the Government's undertaking to introduce a legal aid scheme had not been even remotely honoured and that one could not depend on Government acting consistently in delivering funds to their legal services.
Contrary to the recommendations of the Pringle report no community officers are employed under the scheme, there is no education or research role and, although there is provision for the establishment of local consultative committees, no such committee have yet been appointed.
In their first annual report the board pointed out:
if the aims of the scheme are to be realised, it is essential that in the early years the provision of funds necessary for development should be given priority... The Board has at all times recognised that its obligation is to make the new social service available on a nationwide basis for those in need... However, the history of events since the first centre opened has been a matter of considerable disappointment to the Board. In a nutshell, the Board has not been provided with the funds necessary for expansion although it did and still does stress that it cannot discharge its obligation to provide a proper legal aid service unless speedy approval is given for expansion of the service.
In the first report in 1980 the board noted that they had been informed by the Department of Justice that the scheme would be put in statute form at the first suitable opportunity. They also noted with some disappointment that they had hoped to expand from its initial seven centres to 33 in 1981; in the event the amount provided in grant-in-aid was less than half the amount which the board had considered necessary.
Based on those restricted funds they submitted proposals and received approval for the opening of four new centres in 1981. After having advertised for staff they were then informed that any recruitment would contravene the public service embargo introduced in July 1981 and expansion plans were abandoned.
The public service recruitment embargo has had a disastrous effect on the operation of the scheme, preventing the board at times from maintaining even the limited level of service which they initially achieved. As might be expected, young solicitors tend to move in and out of the legal aid service more quickly than the general run of public servants, especially when there are no opportunities for development or promotion within the scheme.
The first report also identified some problems which have remained with the service ever since and which have contributed greatly to the present crisis. First, in order to ensure that both parties to a dispute were not obliged to attend the same law centre, arrangements were introduced whereby one of the parties in that situation would be represented by a solicitor from another centre.
The annual report in 1980 commented on this arrangement as follows:
This arrangement is costly to operate and it disrupts the running of law centres. From an Exchequer point of view the expenditure involved in sending a solicitor from, say, Galway to Sligo to defend a maintenance summons in the District Court can hardly be said to represent value for money.
The whole reason for this waste is the prohibition on availing of the services of solicitors in private practice, even where those services would be vastly cheaper.
Second, in their first year the board established part-time clinic services in some towns which had no law centre. These clinics are served by staff in existing centres whose manpower is reduced — often halved — as a result. The board concluded that "there is a very definite limit therefore to the improvement of services which can reasonably be expected by opening clinics".
In areas serviced by part-time clinics there is no provision at all for such urgent cases as, for example, barring order applications. Again, litigation stemming from a clinic has to be conducted in the local court so that service in the nearest centre is halved, not only on the day a solicitor from that centre travels to conduct a clinic but also on the day he travels to appear in court on a case arising from that clinic.
The Pringle report had recommended that legal services should be provided by a combination of legal aid centres and private practitioners. They said that "the provision of a comprehensive nationwide legal aid and advice service must involve private practitioners... we consider that a service provided exclusively by legal aid centres would be impracticable outside a few of the larger centres of population". This recommendation was ignored.
The experience of the 12 law centres, together with 18 part-time clinics which open one or two days a month, has borne out the prediction of the Pringle report that it would be impossible for them to provide a comprehensive nationwide service. Rural Ireland is largely unaffected by the civil legal aid and advice scheme.
Even in the larger urban areas the centres cannot cope with the demands imposed upon them. At any given time it is not unusual to find some or all of the four Dublin centres closed to all but emergency cases, so that arrears of work may be cleared. The first such temporary closures took place in 1981 and have been an annual feature ever since. The scheme has collapsed to become an emergency family law service only. Given that 97 per cent of all casework consists of family law matters, it is clear that access to the law is virtually non-existent for many people.
Every annual report of the board has adverted, in increasingly desperate terms, to the same four issues: lack of resources, which prevent it from expanding to provide a comprehensive, nationwide service; the restricted means test; the public service recruitment embargo; and the need to put the scheme on an independent and statutory basis. As the board pointed out in their 1985 report, "one of the consequences of having an inadequate, underfunded legal aid scheme is that it effectively renders progress in the field of law reform virtually irrelevant to a great many people". Recent reforms in family law, for example, are of no practical benefit to those in need unless they also have effective access to legal services through legal aid.
In his foreword to the 1986 report, the last to be published before his resignation together with that of two other board menbers, Mr. Niall Fennelly, SC, wrote:
In December 1977, a distinguished committee, under the chairmanship of Mr. Justice Pringle, reported on the introduction at an early date of a comprehensive scheme of legal aid and advice in civil matters. The scheme established by the Minister in December of 1979 was the offspring of that report. It was poor tribute to the work of the Pringle committee that its tenth anniversary had to be marked by Mr. Justice Pringle's own comments on the limitations and deficiencies of the scheme and his disappointment, which I deeply share, that ten years after the publication of (the) report, so few of the recommendations in that report have, in fact, been implemented by the State.
After eight years, 12 law centres represent the "comprehensive scheme" which was apparently desired by the State in the mid-1970's. In 18 counties there are no law centres although, in some of these, the Board tries to provide a part-time service by attendance on one or two days a month. Obviously, there are large areas of the country where there is no civil legal aid service at all for those who are unable to afford legal services from their own resources.
Even in Dublin, where there are four law centres, the need for services so outstrips resources that applicants for legal aid have to wait for weeks, or even months, for an appointment with a solicitor. The well known adage is that justice delayed is justice denied. I can only regret that justice has to be denied in so many cases.
Whether a legal aid scheme depends for the provision of services on community or State controlled law centres, special provision has to be made for legal aid in remote areas. The Pringle report, the Legal Aid Board and many other commentators have recognised that a comprehensive nationwide service cannot be provided in remote areas without recourse to the services of private practitioners who would be remunerated for this type of work from a central fund.
The Minister for Justice in 1980 described the civil legal aid scheme by saying "The scheme... puts the poor person into a position of a person of modest means". But it is not enough simply to provide a poor man with the services of a rich man's solicitor. A scheme of legal aid and advice must be seen as part of an overall policy to combat poverty. One of the ways in which the problem of poverty can be tackled is through the use of the law on behalf of the underprivileged.
At a basic level an individual needs access to the law in order to vindicate income-generating rights, for example, his right to redundancy pay or to compensation for injuries suffered in a road traffic accident. An award of money following on legal intervention can alleviate poverty.
But the law is also capable of tackling the problem of poverty at a more profound level by redressing the balance of power through the creation of substantial rights for the underprivileged. An aspect of poverty is the powerlessness of its victims and their lack of control over their destinies. An effective legal aid scheme would allow such people to vindicate such rights as they already have under the law and would also identify those areas where reform is needed to build up a corpus of rights inhering in the underprivileged. The function of legal aid should be to provide the poor with access to the law and the courts for two purposes: to enforce laws enacted to protect and benefit the poor and to influence the development of law to provide a fairer share of justice for the poor.
It is, therefore, one of the essential characteristics of an effective legal aid scheme that it be community based and controlled. The reason why the State rejected the concept of community law centres is readily apparent. In his article in the Law Society Gazette already referred to, the Assistant Secretary of the Department of Justice wrote:
No doubt, one of the aims of any review which will take place in the context of introducing a statutory measure will be to simplify the scheme. The degree to which simplicity can be achieved, however, is limited. One of the main reasons for this is that civil legal aid is not just a matter of providing persons of limited means with access to justice — though this is its principal aim — it also means that a very powerful weapon is put in the hands of individuals who happen to qualify whereby they can, with the backing of State resources, take others who do not qualify literally to any court in the land. The potential for abuse in that situation is clear and the need for effective control mechanisms is equally clear.
The law does not have an innate tendency to occupy a position of equilibrium between the various sections of society; it reflects the relative political strength of various interest groups. If the law is to have a role in combating poverty and the powerlessness born out of hardship and deprivation, control of the legal aid scheme must be vested in those for whom it is established.
It is precisely because it is such a "very powerful weapon" that legal aid should be controlled by those whom it is intended to benefit. This requires the establishment of neighbourhood law centres based in and identifying with local communities and run by committees representing those communities. Another obstacle to law is the fact that many people are unaware of the legal dimension to their problems and do not think of consulting a solicitor. This illustrates the need for a programme of public legal education conducted through schools, residents associations, youth groups, etc., such as is undertaken at present by the State's only community law centre at Coolock and which was advocated in the Pringle report. Such a programme would require the appointment of a community officer at the law centre responsible for liaison with the local interest groups. Apart from his educational function, he would have the function of ensuring that the centre took an active role in identifying the legal issues and the areas of law reform of most concern to his community. The law centre should not simply be a State-funded equivalent to a private practice; its strength, as shown in Coolock and in Belfast, lies in the fact that it is locally based and responsible to local needs.
The scheme for civil legal aid and advice has collapsed to become an emergency family law service only, in those limited areas of the country where it is established. There is no access to the law for the bulk of those who cannot afford to pay for their own lawyers.
The principal problems impeding access to law include both lack of finance and ignorance of one's rights. As introduced, the scheme never attempted to deal with the latter problem.
The scheme as established, even if adequately funded, could not cope with the un-met legal need. It is essential that community law centres, based in the areas they serve, be established. Such centres would be managed by committees controlled by representatives of the local communities, run within the guidelines set down by legislation and supervised by an independent statutory legal aid board. The staff would include community officers responsible for education courses for local groups, liaison with the community, research into the legal needs of the area and proposals for law reform.
Such law centres should be established in large urban areas and in large and small towns throughout the State. The centres should be able to provide representation not only before courts but also before tribunals such as the Employment Appeal Tribunal, social welfare appeals, etc., which are at present excluded from the scheme. In practice, these tribunals form the arena in which the rights of the poor are adjudicated. In rural areas legal aid should be available through a panel of private solicitors.
The details of the scheme must be comprehensively advertised. Failure to inform the public defeats the whole purpose of the scheme, which is to improve access to the law.
In moving this motion, we do not seek to pretend that any party has had a monopoly of wisdom in relation to this scheme. It is clear that the Government of which I was a member did try, through the Funds of Suitors legislation, to expand the service, and to protect it from the financial cutbacks of that time. When we come to reply to this debate, we shall show that the Government have not lived up to the responsibilities imposed by the right of access to legal aid, and have ignored the opportunities for greater economic growth.
In the meantime, I will conclude by asking simply for the maximum support possible for this motion. There is no party in this House which has not at one time or another paid lip-service to the principles inherent in access to the law. Now is the time to translate that lip-service into action, by supporting this motion. I want to share some of my time with Deputy——
