I move: "That the Bill be now read a Second Time."
The purpose of the Civil Legal Aid Bill, 1995 is to provide a statutory framework for the Government's scheme of civil legal aid and advice. Since the scheme was established it has helped many thousands of people to have access to justice who would otherwise not have been able to afford it. It is a scheme targeted at those whose need is greatest and while the range of cases dealt with covers most civil law matters the vast bulk of cases are family law cases. The Bill is an important social measure and it implements one of the priority commitments in the Government's programme of family law reform in the run-up to the referendum on divorce.
The Bill provides for the establishment and composition of a legal aid board, maps out its powers and duties and the criteria for granting legal aid and advice, details the types of cases which may be aided, sets out provisions regarding management of the board's finances and empowers the Minister for Equality and Law Reform to make certain orders and regulations to give full effect to the legislation.
The Bill guarantees the continuation of the civil legal aid scheme. The Government believes the statutory scheme now provided for in this Bill and the development programme that has been devised by the Legal Aid Board in consultation with my Department is the best way forward for an efficient, effective and high quality system of legal aid.
To function effectively the board needs a combination of money, staff and law centres. The board operated for far too long on meagre funding since its establishment almost 16 years ago. It was difficult to gain access to justice because numbers of law centres and staff were low and long waiting lists were an unfortunate feature in many law centres.
As Minister for Equality and Law Reform I secured funding for the board which increased from £2.7 million in 1992 to £4.97 million in 1994. The 1995 Estimates provide for £6.2 million, an increase of 25 per cent over last year's figure. As a result of this increased funding over the last two years, staff numbers have increased from 99 to 204. The number of solicitor staff has increased from 39 to 75. The number of administrative staff has increased from 60 to 129.
The number of full-time law centres has increased from 16 in 1993 to the current figure of 25. When the Wexford law centre comes on stream shortly, the number of full-time law centres will be 26 and the 1995 Estimates allow for further expansion.
The increases have facilitated a major development of the services of the Legal Aid Board. They are aimed at ensuring that individuals entitled to legal aid are provided with that legal aid within a reasonable time and that they do not have to travel long distances to obtain it. They have helped to address the problems of persons who, in the main, seek recourse to the courts for maintenance orders for themselves and their children, for barring orders to protect them from violence in the home, for child custody orders and for decrees of judicial separation. Against the background of those major developments and this Bill the legal aid scheme is now one of the flagships of the State's services to those in need.
A key feature of the board's services with which I readily agree is that it employs its own solicitors. It has resulted in a good standard of service which is uniform throughout the law centres. I take this opportunity to thank the staff and the board for delivering that service to the public.
To assist the House in its consideration of the Bill, I will explain briefly the manner in which the existing scheme of civil legal aid and advice operates. An understanding of that scheme, on which I have based the Bill, will be useful when we come to deal with the minutiae of the proposed statutory scheme.
In order to qualify for assistance under the existing administrative scheme, an applicant must satisfy two basic eligibility tests; one based on his or her means and the other on the merits of his or her case. The income eligibility limits are reviewed from time to time on the basis generally of increases in the consumer price index. The most recent increase was in 1991. I am increasing the various allowances which may be deducted from an applicant's gross income to determine his or her disposable income by an average of 13 per cent, the income threshold beyond which means related contributions are payable by 15 per cent and the income eligibility limit by 18.5 per cent. These increases will mean that more persons will be eligible for legal aid than heretofore.
Certain details in relation to the operation of the means test which may be of interest to Deputies are as follows. An applicant satisfies the means test if his or her "disposable income" and "disposable capital" are within limits specified in the scheme. "Disposable income" is the income which remains when various deductions are made from gross income —"gross income" being defined as total income received from all sources. The deductions to be made from gross income, which are referred to as allowances, include, for example, sums in respect of income tax, mortgage repayments, rent, social insurance, VHI contributions, expenses in travelling to and from work, together with various allowances in respect of the applicant's spouse and dependent children. "Capital" includes, for example, money in the applicant's bank, credit union, building society or post office accounts, or the applicant's house, property or land. The assessment of the value of such resources can seem to be a complex matter. The aim, however, is simply to assess the real value of the applicant's disposable capital. That is essentially its gross value, less, for example, the cost of realising assets or repaying outstanding loans. In the vast majority of cases applicants do not have significant capital resources, which means that, by and large, eligibility is determined by reference to income alone. I should add that while the income of a husband and wife are normally aggregated, they are treated separately when the parties are in conflict with each other or where they are living apart. As a result, in a very high proportion of matrimonial cases, women will qualify for legal services even if their husbands are financially secure.
The merits test to which I referred earlier operates on the basis that legal aid may be granted only where the applicant has, as a matter of law, reasonable grounds for taking, defending or being a party to legal proceedings and is reasonably likely to be successful in those proceedings.
As a result of the decision of the
Supreme Court in the case of M. F.-v.—Legal Aid Board and Others different considerations apply in the case of applications to the board concerning children. Due to that decision, individuals applying for legal aid in cases concerning children who are otherwise eligible, are not refused legal aid under the merits test unless the board considers that their is no reasonable likelihood that their points of view and submissions in relation to the child would be among the material which would be relied upon by a judge in determining issues concerning the child.
In considering applications for legal aid in general, it is also necessary for the Legal Aid Board to have regard to all the circumstances of the case, including the probable cost of taking or defending the proceedings, measured against the likely benefit to the applicant. In effect, the scheme aims not to put the person of limited means in the position of an individual for whom "money is no object" but, rather, to put him or her in the position of a person whose means, while not over-abundant, are sufficient to cover the cost of obtaining essential legal services.
Under the scheme, recipients of legal services are liable to pay contributions to the board. The new minimum contribution will be £4 for legal advice plus an additional £19 where the applicant needs to take or defend court proceedings. The scheme also provides for a maximum disposable income related contribution of £583. Generally speaking, therefore, the individual applicant knows from the outset the maximum cost of the board's services. In a small number of cases, the contributions originally determined may be increased — for example, where the applicant's financial circumstances improve while he or she is in receipt of legal aid or where his or her financial circumstances improve as a result of obtaining the board's services. The forthcoming increases in eligibility levels will be reflected in the amount of contribution payable by an applicant for legal aid or advice.
There are three final points concerning contributions which are worthy of mention. First, all persons depending solely on social welfare payments qualify for legal services on payment of the standard "minimum" contributions. Second, a person who is liable to pay the minimum contributions may have the payments waived in whole or in part in cases of severe hardship and, finally, contributions may in certain circumstances be paid in instalments.
Certain matters, including representation before tribunals, are excluded from the scope of the existing scheme. However, law centre solicitors can, and regularly do, provide advice to applicants in cases coming before tribunals; and if the decision of a tribunal is appealed to the courts, both legal aid and advice may be provided.
Section 2 of the Bill enables me, as Minister, by order to appoint a day to be the establishment day for the purposes of the Act. This is a standard provision in legislation of this nature. It will allow time for regulations to be made under the Act and for the board to put in place the measures necessary for its operation as a statutory body. The aim, of course, will be to bring the legislation into force as quickly as possible.
Sections 3, 4 and 5 deal with the establishment of the Legal Aid Board and charge it with the function of providing, within its resources and subject to the provisions of the Act, legal aid and advice to applicants who satisfy those provisions. The board will be endowed with legal personality thereby entitling it to be a party to legal actions and to hold legal title to property.
Section 4 continues the arrangement under which the Minister has power to appoint the Legal Aid Board, which will consist of a chairperson and 12 ordinary members. Two members of the board must be barristers and two must be solicitors. In addition, staff will be represented on the board by two of their number. I am also ensuring that the board will have an appropriate gender balance. No fewer than five members must be men and no fewer than five must be women. As at present, the term of office of board members will be five years and no member will be able to serve more than two terms.
The principal function of the board, by virtue of section 5, will be to provide legal aid and advice in civil cases to individuals who satisfy the income eligibility criteria specified in section 29 and the other requirements of the Act. The board will also be obliged to disseminate information in relation to its services to such an extent and in such a manner as it considers appropriate. Under section 6 the Minister may assign additional functions to the board which are incidental or consequential on the functions assigned to it by the legislation. The board will be entitled to delegate functions to its members or its staff.
Section 7 empowers the Minister to issue general policy directives on legal aid and advice to the board and requires it to comply with such directives. This provision is necessary in view of my overall responsibility to the Oireachtas for legal aid policy. As at present, however, the board will be independent in relation to the provision of legal aid and advice.
Section 9 deals with annual reports, and adheres to the current practice of requiring the board to present such a report to the Minister in such form as the Minister may approve. The board must make its report within nine months after the year which is covered by the report. The section also requires the Minister to lay before the Houses of the Oireachtas copies of every such report. The Minister may also request the board to supply information relating to the performance of its functions.
Section 10 provides for a chief executive officer of the board who will be a civil servant of the State and will be appointed by the Minister on the recommendation of the Civil Service Commissioners.
Sections 11, 21 and 22 deal with matters relating to the other staff of the board. Those sections were framed after lengthy discussions with five different trade unions as well as the board itself. The result of those discussions is one which I believe will satisfy all of the parties involved. The effect of the sections in question is that the board's administrative and clerical staff will be civil servants in the Civil Service of the State. The board will be in a position to recruit its own staff through the Civil Service Commission, a development which it has sought for some considerable time. The board's solicitor staff will continue, as at present, without Civil Service status. However, the Bill enables me to designate them as civil servants following consultations with them and with the consent of the Minister for Finance.
Section 13 to 17 deal with a number of technical and practical matters which arise because of the legal identity which the board will have following the enactment of the Bill. Section 14, for example, is a standard provision which transfers all property, rights and liabilities currently attaching to the non-statutory board to the new board, while section 15 serves to ensure that contracts entered into by the current non-statutory board are transferred to its statutory successor.
Sections 18, 19 and 20 deal with matters relating to funding of the board. They empower the Minister, with the consent of the Minister for Finance, to advance funds to it and require it to establish and maintain a fund to finance all its operations.
I now come to the heart of the Bill, that part which deals with the provision of legal aid and advice. While the sections in question reflect the provisions of the existing scheme to a considerable extent, there are a number of significant changes which will enhance the legal aid system.
Section 24 maps out the primary test which an applicant for legal aid must pass in order to obtain such services. It requires that legal aid or advice may not be granted unless, in the opinion of the board, a reasonably prudent person in similar circumstances who could afford to pay for the services of lawyers in private practice would do so at his or her own expense and a lawyer would be likely to advise them to do so.
Sections 25 and 26 concern legal advice, which is defined as legal assistance other than actual representation in court or any preparatory steps leading up to it. The board will, subject to section 26 (3), be precluded from providing legal advice in relation to criminal law matters because, as Deputies will be aware, such matters are dealt with under separate legislation, namely the Criminal Justice (Legal Aid) Act, 1962. That subsection addresses the situation where complainants in cases of rape, aggravated sexual assault, unlawful carnal knowledge and incest are in need of legal advice. The board will be in a position to give that advice free of charge.
Sections 27 and 28 deal with legal aid which is defined as meaning representation by a solicitor or barrister nominated by the board in civil proceedings conducted in the District, Circuit, High or Supreme Courts or any court or tribunal prescribed by the Minister by order under section 27. The definition encompasses all such assistance as would normally be given to a client by a solicitor in private practice in relation to instituting, defending or concluding court proceedings, and it applies to all civil proceedings other than those referred to in section 28 as "designated matters". The designated matters are matters presently excluded from the scheme, such as defamation and conveyancing, other than conveyancing which arises out of a matrimonial dispute. However, I have provided in section 28 (11) that the Minister may, by order, deem any of these matters as no longer being designated. The making of any such order would take into account the capacity of the board to deliver those services in addition to existing services, its resources and the Exchequer position.
The Bill also provides that applicants will be provided with legal aid where they are granted legal aid certificates.
The criteria for the granting of certificates are contained in section 28 and are on similar lines to those contained in the scheme. For reasons which I have already outlined, special provisions will apply in the case of children. It also provides that applicants in general must satisfy a "merits" test. There is provision, for example, that the applicant must, as a matter of law, have reasonable grounds for taking, defending, or being a party to proceedings, that it must be reasonable having regard to all the circumstances of the case, to provide legal services. Deputies will readily appreciate that there is little point in legally aiding a client where it is considered that, from a legal point of view, his or her case is totally lacking in merit and that legal services, no matter who may provide them, are unlikely to provide him or her with any worthwhile benefit.
In assessing whether or not a legal aid certificate should be granted, the board will continue to be required to weigh the probable cost of providing legal aid against the benefit likely to accrue to the applicant as a result of the proceedings. The board will also have discretion to refuse to grant legal aid certificates on specified grounds where, for example, the cost to the applicant of taking the proceedings without receiving legal aid would be less than the contribution payable by him or her to the board or where the applicant has failed to provide such information as is required by the board to make a decision on his or her application.
Section 29 deals with the critical matters of financial eligibility criteria and contributions. An applicant's eligibility and contribution will be assessed by reference to his or her disposable income and, where appropriate, disposal capital, in such a manner as is prescribed in regulations. As indicated, I have reviewed the income eligibility limits and increased them from 1995.
Section 30 of the Bill provides for the establishment of panels of solicitors and barristers who will be able to provide legal aid and advice to clients of the Legal Aid Board. The pilot private solicitor project which I initiated last year was generally welcomed as being instrumental in helping to reduce the backlog of cases which had existed because of under-funding and the lack of law centres and staff. Its operation has been reviewed in the light of implementation of the development programme involving the significant additional resources I have been able to provide for the board and I am at present awaiting receipt of the board's observations on the conclusions of the review group.
Section 30 (6), which is new, will enable individual law centres, through different solicitors, to assist both parties to a case. In the past, such cases have been dealt with by separate centres with the result that clients of the board have, on occasion, to travel considerable distances to meet with their solicitors. I have taken the opportunity given by the Bill to tackle that problem. It will be of benefit particularly to persons who avail of law centres in small or remote towns. They will not now have to travel long distances to other centres.
Section 31 deals with the selection or nomination of lawyers to represent clients, while section 32 in effect guarantees clients of the board the same rights as they would have should they have retained the services of solicitors in private practice. Sections 33 to 36 deal with the matter of costs. They allow orders to be made in proceedings for costs in the same way as they would in cases involving parties who are not legally aided. Section 34 points to a number of specific factors which should be taken into account by the courts in making such orders.
These are the main provisions in the Bill. They have been subjected to close scrutiny by the other House in the course of an invigorating and constructive debate and the Bill has been improved as a result. Deputies may be aware that the question of including Employment and Social Welfare Appeals Tribunals cases in the scope of the statutory scheme was the subject of a long debate in the other House. As I explained in that House, the Legal Aid Board provided legal representation in 2,411 cases in 1993 and in that same year the Employment Appeals Tribunal heard 5,710 cases. In 910 of the EAT cases the employee was legally represented. Had legal aid been available, it is estimated that the vast majority of those 910 cases would have been legally aided and the board's caseload would have increased by almost 38 per cent. The board would simply not have been able to deal with that number of cases without a major disruption of its capacity to deal with family law cases.
In the same year the Social Welfare Appeals Tribunal decided on 14,115 appeals. Once again, the overwhelming majority of individuals involved in those cases would have qualified for legal aid had it been available. Any need to provide legal representation in even a small proportion of that large number of cases would wipe out the capacity of the board to deal with family law cases. What one would have is a picture of chaos in which the board would be unable to deal with any case at all within a reasonable time, be it a family law case or a tribunal case. The combined effect of labour and social welfare cases on the board would increase by upwards of six times its existing workload. To cope with the work, funding for extra staff and premises would have to increase to up to £20 million or more compared to present funding of £6.2 million. It is no surprise, therefore, that successive Ministers with responsibility for legal aid and successive Governments have been unable to agree to the extension of legal aid to tribunal cases.
My priority at present is to ensure that we have a nationwide legal aid service which is reasonably accessible to clients and to ensure that waiting lists can be kept to an absolute minimum. The board must, as a priority, be in a position to deal effectively with family law cases. That being said, I should reiterate that legal advice on labour and social welfare law matters is available under the scheme at present and legal aid is available where court proceedings are concerned. The Bill, as it is framed at present, will allow legal aid to be extended to tribunals by ministerial order at a time when it can be said that the financial and structural arrangements are in place and when it can also be said there is public acceptance of the need for that type of expenditure, given the other demands on legal aid and on the Exchequer. The immediate inclusion of even the Employment Appeals Tribunal, however, would result in very large increases in waiting lists and divert the board's limited resources away from it primary focus.
The fact that over the years the legal content of cases before the Employment Appeals Tribunal appears to have increased is of concern. In so far as legal aid may be involved, I am reviewing the position in consultation with the Minister for Enterprise and Employment. If a structured approach can be developed it may be possible to extend legal aid to certain such cases, depending on how the current development programme of the Legal Aid Board works out and depending also on the Exchequer position.
I regard the legal aid scheme in its statutory form as part only of a general scheme or framework for persons who are in the unfortunate position of having to resolve a civil dispute. I think, Deputies will readily accept that the courts should be a last resort and that where possible every other effort should be made by persons to resolve matters by other means. In this context my approach, in so far as marriage breakdown in particular is concerned, is not to confine State funding to any one area but to channel funding into marriage counselling agencies and the family mediation services. Our separation laws encourage that approach and enable the courts to adjourn proceedings to allow parties to avail of those services. My Department has responsibilities in relation to all of these areas and the programme of legislative and administrative reform being implemented by my Department represents the commitment of the Government to the social principles of equality and of access to justice. I look forward to the comments of Deputies on the Bill.
I commend the Bill to the House.
