I have given leave to Senator Robinson to raise the following matter:
The fact that persons entitled are not getting the benefits of the scheme for free legal aid in criminal cases because of lack of adequate publicity and inadequacy of fees.
Question on Adjournment: Free Legal Aid.
An Leas-Chathaoirleach
I am grateful for the opportunity to discuss this important matter in the Seanad. I regret that it is not possible for the Minister for Justice to be here but I am sure his views will be conveyed to us. Two other Senators have indicated to me that they would like to make a contribution so I shall confine my remarks to half the time allotted to me.
I accept that many of the serious problems relating to the operation of the system of legal aid in criminal cases could only be resolved by amending legislation and are thereby outside the scope of an adjournment debate. I shall try to confine my contribution to the specific questions concerning the administration of the Criminal Justice Legal Aid Act, 1962, for which the Minister has ultimate responsibility and I invite his comments on these aspects.
It is a well-known fact that the present scheme which was introduced on a trial basis on 1st April, 1965 — almost ten years ago to the day — has never worked well and has been a continual source of contention between the Department of Justice and both branches of the legal profession.
Why has the scheme worked so badly? What are the problems in administration which have led to this constant turmoil and dissatisfaction with the scheme? We cannot close our eyes in this House to the present critical state of affairs; that of the 53 solicitors in Dublin who were on the legal aid panel, only two now remain and that this has been the position since the 1st December last. The result of this sutuation is an extremely critical one. Persons who would be entitled to be represented under the legal aid scheme are not represented for the practical reason that there is nobody to represent them. Children are appearing unrepresented before the Children's Court, despite an undertaking some time ago that children would be entitled to and would get legal representation. Persons appearing before the Central Criminal Court, the Special Criminal Court and the Circuit Criminal Court in Dublin are not getting the legal representation to which they would be entitled if there were enough solicitors remaining on the legal aid panel and willing to provide this service.
To what extent, then, has this virtual breakdown in the system of legal aid in criminal cases being caused by bad administration? This is the question which must be asked on the Adjournment; also, why is the scheme itself so unattractive to members of the profession that so few put themselves on the legal aid panel? For example, outside the city of Dublin, it is my information that as few as six or seven solicitors act on the legal aid panel.
I now want to come to the question of publicity. The scheme has never worked well and evenly throughout the country because there has not been adequate publicity of the availability of legal aid to persons who do not have the means of employing their own legal representative and who are entitled under the 1962 Act to representation. I would ask whether the Minister has considered the possibility of improving the publicity for the scheme — perhaps on an analogy with the notice which now appears in Garda stations informing people of their rights on arrest, or whether there might be more effective publicity to the individuals concerned by sending out a standard notice with any summons issued to a person, or handing it to the person when he is being informed of the charges against him or the reason for his arrest. I should like to hear the Minister's comments on that point.
One reason therefore for the bad operation of the scheme — it is a minor reason but it relates to administration — is the lack of publicity. This is evident by drawing a comparison between the legal profession and the medical profession. If the vast majority of the medical profession were to opt out of the health scheme there would be immediate public disquiet and outrage. The present situation concerning the service by the legal profession is being ignored to a large extent at the political level because people have not been made sufficiently aware of their rights and so tolerate a situation which in my view is quite wrong and intolerable.
Apart from the question of publicity, one of the main problems in the administration of the legal aid scheme in criminal cases has been the question of the scale of fees; the remuneration to both branches of the legal profession. Recently the matter of solicitors' fees was referred to the National Prices Commission. The National Prices Commission report is contained in the Monthly Report, No. 35, December, 1974, published on 6th February, 1975. Paragraph 295 of that report contains a summary of the arguments of the Incorporated Law Society on behalf of the solicitors:
295. The application of 24 July, 1974 from the Incorporated Law Society of Ireland was based on the following considerations:
(a) The main volume of work was handled by about 20 solicitors, and several of them are contemplating resignation from the Panel.
(b) There was an extreme degree of dissatisfaction with the fees at present payable. The Scheme of Criminal Legal Aid was introduced on an experimental basis, and pending experience, it was agreed by the profession that the fees payable would be on a charity basis and, therefore, lower than those obtaining normally. Despite the significant fall in the value of money in the meantime, no adjustment had been made in this low scale of fees since 1970. Given that the Scheme is now of a permanent nature, the participating practitioners consider that the fees payable should be on a par with those payable in private practice.
(c) Solicitors and District Court Clerks alike experience difficulty in operating the regulations and, in particular, in having claims certified and processed.
(d) For a solicitor engaging in a significant amount of Criminal Legal Aid work, the present delay in payment presented severe cash flow problems.
(e) Any attendance at a District Court in Dublin represented a morning or afternoon out of practice and would have to be paid for accordingly.
(f) No allowance was made for the increasing problem of being called out at very short notice to advise a prisoner in Mountjoy, St. Patrick's, the Curragh or in Portlaoise. Failure on the part of the solicitor to attend such calls, no matter how unreasonable, leads to criticism at Court and adverse comment from the Bench.
This submission had been made originally to the Department of Justice in July and was passed on to the National Prices Commission in December. Having considered the position, the National Prices Commission recommended a two-thirds increase in the present fees to solicitors; that there would be a broadening of the scheme to include bail applications and cases stated; and that fees for visits to Mountjoy, St. Patrick's or other penal establishments be provided. The National Prices Commission stated that it would undertake a review of solicitors' fees in general because of the attitude of the Department of Justice to the question. This is a matter which is highly relevant to this debate. That view is set out in paragraph 298 of the report:
298. The Department of Justice also pointed out that some parts of a solicitor's business (such as defending persons accused of crime) were not profitable, but that this could be offset by charging higher fees for more profitable work (such as conveyancing, probate, etc.). Accordingly, the principle applied by successive Ministers for Justice, when dealing with scales of fees for the more profitable work, had been to allow a certain amount of charging "what the market would bear" in the cases of fees for such work, provided the solicitors concerned were also engaged on a proportion of less profitable work.
For those with an intimate knowledge of how the legal aid system works in criminal cases, that is a quite unreal and unfair proposition because, as a matter of practice, the solicitors who are engaged in criminal work — and who are likely to be on the legal aid panel — do not in general have a profitable side to their business. Solicitors who have a profitable business in conveyancing or probate, taxation and so on, do not engage in criminal work. Therefore it is unfair to ask the solicitors who offer to undertake this public service — who are concerned about representing persons accused of crimes and who are upholding a system which we all value because it is concerned with the liberty of the individual — to accept a lower rate of pay for the job. The meanness with the public purse has resulted in great injustice and real dissatisfaction among the more idealistic and the more concerned members, who are very often the junior members, of the legal profession.
The Bar Council made a lengthy submission to the Minister on the question of the operation of the system of legal aid in criminal cases. Many of the matters contained in that excellent memorandum are outside the scope of the present debate because they would require amending legislation. However, I should like to refer to the attitude of the Bar Council on the question of fees. They maintain that the proper approach is to have a system of taxation similar to that used for work done not on legal aid. If I might quote briefly from that memorandum:
Whilst strongly maintaining that a taxation system related to payments ordinarily recoverable by solicitors and Counsel working outside the system for comparable work must be the basis for remuneration we are impressed by the system of payment in force in Northern Ireland.
There a scale of fees is in force applicable to various crimes arranged in six categories grouped by seriousness of offence. After a trial the scale fee is immediately payable but where in a particular case there have been special factors affecting the work of Counsel or solicitor a bill for the additional fees attributable to those factors may be taxed and recovered in addition to the scale of fee. We believe that the Northern Ireland system has the advantage of combining the principle of taxation with a system which permits of prompt payment of at least part of the fees. We also surmise that it cuts down on administration costs since neither solicitor nor Counsel is likely to be disposed to go to taxation where the difference between the scale and the additional fees is trivial.
6. The level of fees is inadequate. We do not consider that this aspect of the matter requires explanation. The fees payable to a barrister going to, say, Sligo to defend a prisoner were sufficient to defray his travelling expenses at ordinary civil service rates, as far as Ballisodare before the increase in petrol prices.
A barrister conducting a case in Green Street Courthouse for two days and taking judgment on the third day is entitled to less in fees than is paid to a junior member of the Garda Síochána who stands in the back of that courthouse on the same three days, provided the garda is being paid, as he will ordinarily be, at overtime rates.
Difficulties in this area also would be overcome by adopting the modified taxation system suggested.
There is, I think, a very justifiable grievance in the profession about the scale of remuneration and the operation of the system of criminal legal aid. The Minister made remarks recently about dragging both branches of the legal profession "howling and kicking" into the 20th century. I believe that a proper system of criminal legal aid would go a long way towards bringing the whole system of criminal law into the 20th century.
Finally, I should like to emphasise that the situation is intolerable in that there has been a virtual breakdown of the operation of legal aid in criminal cases, and that it is incumbent on the Minister either to set up a separate committee to examine the system and to consider all aspects of it, including the possibility of the need for amending legislation, or else to accede to the many requests made — by the Bar Council, by the Incorporated Law Society, by FLAC, by the socialist law students — to broaden the terms of reference of the Pringle Committee so that it may consider the operation of legal aid in criminal cases as well as civil legal aid.
I wish to support Senator Robinson in this respect. The whole system of criminal legal aid has broken down. I happened to be Minister at the time it was introduced in 1965 and I remember quite clearly when it was introduced and scales were set on an experimental basis because the Department of Finance thought that it could run away with money. In effect, that did not happen at all. The only adjustment that has been made in the scale since 1965 was that made in 1970. There has been no adjustment since 1970. The result is that solicitors and counsel are just not operating the scheme. Furthermore, there is no obligation on the State or on the judge concerned to inform the accused of his rights to legal aid. Again, I am going into the legislative area here, it is deficient in that there is an onus laid on the judge to decide whether or not the accused is in need of legal aid. In my view it is totally wrong to place that onus on the judge without having criteria in regard to means set out in the statute.
It is ridiculous to be talking in terms of having civil aid, which is a very wide area of financial involvement and on which we now have a commission presided over by the former Mr. Justice Pringle, while the basic area of criminal legal aid is at the moment not functioning by reason of fees that are totally inadequate and by reason of the parsimonious attitude adopted by both the Department of Justice and the Department of Finance and operating under a section of an Act that enables a judge to exclude 99 per cent of the people if he so wishes. Furthermore, people are just not aware of their rights in this matter.
What it adds up to, fundamentally, is (a) people being made fully aware, on arrest and on appearance in court, of their right to legal aid (b) criteria written into legislation on which legal aid can be given and (c) fees paid to practitioners acting on behalf of accused people that are comparable to fees paid to State counsel and State solicitors. That is the very least that might be done to ensure justice is performed in an effective manner, that a scale of fees be adopted. What criteria should be followed is a matter for investigation but the State counsel and the defence counsel operating under schemes for which the community is responsible, responsible on the State side for the presentation of the case on the part of the State, operating on the defence side in the interests of justice for the defendant, should receive the same fees in each case.
I should like to add my voice to those that have already been heard and within the limitations expressed by Senator Robinson as to the nature of the things I can say and with the additional limitation that I know very much less about the matter than either of the two previous speakers. I am particularly distinguished in the legal field for my ignorance on the subject of criminal law. It seems to me that there may lurk behind the deficiencies of the scheme, which must be obvious to everyone as there is nobody any longer, practically speaking, practising it, a lack of enthusiasm about the reality of the need for the service which is here being provided. There is some sense that the guilty man is in the dock about the attitude of the State towards the provision of service for people who are being accused. The Pringle Commission's terms of reference seem to be eminently desirable of extension so as to include, within the range of inquiry, the criminal as well as the civil aspects of legal aid.
Very much more could be said about the need for civil legal aid in terms of the whole sophistication and development of modern industrial society and the kind of laws that we may need for this kind of society compared with the kind of laws we had which emanated out of an agricultural society.
Finally, I think the idea that you apply the Robin Hood principle in legislation or administration is essentially wrong. Even if you moderate the fees to suit a particular category of task this is much more sensible than to assume that the person who is going to go into this field is going to have a bonanza on the side, that it is going to enable him to afford this luxury of providing a criminal aid service. One of the costs the State might well think about — the cost of failure to face into the provision of a proper scheme — is to be found in the shattered idealism of people who are really concerned about the criminal and his ultimate responsibility for his own state, his environmental relationship and so forth. That can spread well beyond the field of the legal practitioners who are interested in this field. I know some young people who are genuinely moved by concern, which does not move me but I recognise it as a very real and noble thing to inspire other human beings.
Outside of the particular field of the criminal lawyers there are all sorts of other people who like to feel they are participating in the work of our society — sociologists, psychologists, politicians. I recommend consideration of these views to the Minister.
Cavan)(for the Minister for Justice): On behalf of the Minister for Justice, I want to apologise to the Seanad for his inability to be present. He was engaged on important questions in the Dáil and found it impossible to be here. I have listened to the contributions of Senator Robinson, Senator Lenihan and Senator Alexis FitzGerald with interest. I think it would be inappropriate for me to comment on or express my personal views as it is a matter for the Minister. The Minister for Justice will also have the advantage of having a complete transcript of the speeches that have been made. The Seanad may rest assured that he will give full consideration to them.
The Seanad adjourned at 5.10 p.m. until 3 p.m. on Tuesday, 25th March, 1975.