While I understand the concerns that have led the proposers of the motion to put it forward I would like to make it clear that I do not share their alarmist note nor do I accept that there is anything to deplore about the operation of the scheme. Last Wednesday evening Senator Robinson, in an obiter dictum, suggested that she could not find a stronger word. My belief is that it is far too strong a word for the motion that is before us. I would suggest, on the contrary, to Senators McGuinness and Robinson that on a balanced and objective reading the report of the Legal Aid Board for 1983 and 1984 does not warrant such a negative reaction. Nor can I accept that the difficulties the board are experiencing in meeting the demands for their services are related in any meaningful way to the 1977 Pringle report on civil legal aid and advice or that the judgement of the European Court of Human Rights in the Airey case of 1979 is relevant to this matter.
Among the positive aspects of the board's report is the board's acknowledgment of the recent contribution from the Government to the extension of their services. That was the decision to allocate moneys to the board under the Funds of Suitors Act, 1984, to enable them to establish new law centres in Tralee, Athlone and Tallaght and an additional centre in Cork. The board saw this development as the most welcome news received by them in recent years. They have expressed their gratitude to the Minister for Justice for securing this badly needed expansion of service at a time when resources necessary for the development of social services generally are very scarce. I might add, in case there is any confusion on the matter, that I am glad to have been the inheritor of my predecessor's good sense in that particular matter and indeed to have participated in a different capacity in making that decision.
To bring the House up to date on the question of resources, I can report that the centres at Athlone and Tralee are already open. I had the pleasure of formally opening the centre in Athlone. The centre at Tallaght is expected to open early in the new year — the delay there, which I regret, is due to planning permission difficulties encountered by the board. The extra centre in Cork has been operating since November 1985.
This development marks the first expansion of the board's services to new locations since the scheme started to operate in 1980. It brings the total number of full time centres operated by the board to 12. The board also operate part time clinic services at 13 other locations around the country, and the current expansion of full-time centres is expected to enable the board to extend their part time services also. I understand that the board hope to open some additional part time centres before the end of the year. Persons who wish to avail of the board's services may do so at any of the locations where the board provide services and applicants are not under any restriction relating to residence or to geographical considerations.
The board went on to say in their report that even with the expansion from the funds of suitors provisions, they will still be quite some distance from their goal of achieving a nationwide legal aid service. I will return to that matter in a moment.
The board also welcomed the initiative taken by the Minister of State with the responsibility for family law reform, Deputy Fennell, in setting up a steering committee to prepare a pilot scheme for conciliation. That pilot scheme was launched in July of this year for a three year period. It seems to me to be premature on Senator Hillary's part to forecast that funding will not be adequate. The board explained how the legal aid scheme can benefit from such a service as a result of the high proportion of cases, particularly in the family law area, which could and should be resolved without recourse to litigation. In this connection the board made a very telling point, which has important implications for policy, when they said that the legal aid scheme was frequently used by people who should be using other services instead, such as marriage counselling or conciliation services, a point taken up by Senator Eoin Ryan in his contribution to the debate. We should be conscious of the fact that we cannot oblige people to forego their right to litigation if that is the course they choose.
It has been suggested before now that we are a very litigious nation, that we have a greater propensity than others to regard litigation as a first rather than a final option and to ignore other possibilities for settling disputes. Apart from those quoted by the board, there are many examples of this outside the area of family law, for example in the important area of personal injuries litigation. It is fair to interpret the board's remarks as a warning of the need to ensure that such expansion of legal aid as does take place reflects a genuine demand for essential legal services for people who cannot afford to pay for such services themselves, and have no alternative but to seek a legal solution to their problems.
It would be fair to say that the main difficulties that the Legal Aid Board referred to in their report for 1983 and 1984 were the need for further expansion of services, which they see as the central problem — various Senators repeated this view — the high proportion of applicants deemed ineligible for services under the means test limits then obtaining, and the need to put the scheme on a statutory basis. I would like to deal with these matters.
The question of further expansion depends entirely on the availability of additional public financial resources. The board clearly recognise this. When it was decided to allocate moneys to the Legal Aid Board from the Funds of Suitors to establish the four law centres to which I referred earlier, the Government announced also their intention that some further law centres would be established in 1986 and 1987 — if sufficient moneys remained in the dormant accounts, after the various other commitments that arise under the Funds of Suitors Act, 1984, had been met. My predecessor made it clear, in public statements on this matter, that the final allocation for legal aid would depend on the eventual cost of constructing the new childrens' court in Dublin, which is one of the projects being financed under the legislation. The other factor on which the availability of funds depends is the accrual of interest on the funds before they are all drawn down under the legislation.
A contract for the children's court was placed last April. It will cost more than had been estimated originally. At the same time, although they are a blessing for hard pressed borrowers, falling interest rates have had an adverse effect on the yield from the investments in the dormant accounts. There are occasions when it must be recognised that by doing good we may also be doing evil. I see Senator Ross finds that to be a particularly perspicacious remark, and no doubt he may have more to say about that in another debate.
As a result, there is still a considerable degree of uncertainty as to the amounts that may be available from the Funds of Suitors to finance further expansion of civil legal aid services beyond the four law centres that are going ahead already. That uncertainty is likely to persist for some months yet. I hope that the position will become clear by the end of the year and that the board will be enabled to expand their services further as soon as financial circumstances permit. The House, and in particular the proposers of the motion, may be assured that to the extent that my previous functions have given me any insight into the possibilities of making funds available for these kinds of purposes, those insights will be used to the full.
The tight constraints on public financial resources now and in the foreseeable future have important implications for policy in relation to the further development of our civil legal aid services over the short and medium term. They impose on us a clear obligation to use the limited resources available in the most cost effective way so as to optimise the benefits to the community. During the debate we have heard calls for fundamental changes in the scheme, calls to expand the service to cover appearances before tribunals, to cover test cases, to cover education as to legal rights, social welfare matters and community development. There have also been demands to include the services of private practitioners within the scheme so as to provide for a choice of solicitor.
Such demands are not new. Aside altogether from the policy issues which they raise — and they are many — I am convinced that the proper way to develop our civil legal aid services is through the systematic expansion of the existing civil legal aid scheme until the services provided by the Legal Aid Board can be said to be readily available on a nationwide basis. Until that has been achieved, I do not believe there will be any real scope for a major extension of the provisions of the scheme. Unfortunately in this area, as in so many others, we must crawl before we walk and there are a great many leaps which we might like to take that cannot be taken until we are steady enough on our feet to begin to run. That is a simple matter of resource availability, as was pointed out by Senator Eoin Ryan in his contribution to this debate.
Senator Durcan criticised the scheme as being too bureaucratic and thinks too much is being spent on administration. This has been said before, but the simple fact of the matter is that the administrative work involved in the scheme arises mainly from the implementation of the recommendations which the Pringle committee made in relation to such matters as the means testing of applications, eligibility criteria, procedures for application and grant of legal aid and advice, and to other matters. We have now established a sound administrative base for the scheme. The current expansion is being achieved without any significant increase in the board's headquarters costs. I am given to understand that the board feel that any additional resources that can be provided can be channelled directly towards the provision of extra services at law centres and part time "clinics".
It is worth noting in this connection that during the two-year period 1983 and 1984 the board provided services to over 11,000 people at a total cost of about £2.8 million — an average cost per case of £250. The board said in their report that these figures actually understate their case load and that the average case costs are even lower. By contrast the Joint Committee on Marriage Breakdown — indeed in the section of their report which Senator Robinson used to attack the scheme — reported that the legal costs involved in taking an average family case to a hearing in the Circuit Court or High Court could be in the region of £1,000 to £2,500.
Since publication of the board's report, I have approved a substantial increase in the means test limits which apply under the scheme with effect from 29 May last. When this matter was debated on the Adjournment of the House on 1 May I mentioned that I had proposals to revise the means test provisions. Subsequently I approved an increase in the eligibility limit from £3,500 to £5,500 disposable income per annum — an increase of 57 per cent. This should bring about a very large increase in eligibility for service under this scheme, and further improvements which I approved affecting social welfare recipients mean that all such applicants should receive services which may include legal representation in cases all the way to the Supreme Court — for a nominal contribution of £15. That contribution may, of course, be waived in hardship cases. The present means test limits compare very favourably with the limits which apply to civil legal aid services in Britain and Northern Ireland and mean, in practice, that a married person earning a gross income of about £13,000 and having a spouse and three children to support and with normal financial commitments will qualify for services.
Senator Eoin Ryan asked if statistics were available to show the effect on applications of the recent increase in the means test provisions. The board have informed me that in the four month period before the new limits came into operation the number of new applicants who were refused services under the scheme on grounds of financial ineligibility represented 20.7 per cent of all such applicants in that period. In the four month period up to the 30 September 1986, following the revision, the corresponding figure was 4.2 per cent. I am prepared to believe that the two may not represent a complete change in the trend, but I think the figures are, nevertheless, indicative of the effect of widening the eligibility criteria.
Senator Brendan Ryan was very critical of the means test provision in the scheme, and went on to suggest that any means tested service for the poor would be a poor service. I admired the elegance and the punchiness of the phrase, but I disagree with the substance of it. I wonder how he can say that and support a motion calling on me to review the scheme in the light of the Pringle report. Senator Brendan Ryan must be aware that the means test provisions in the scheme are modelled precisely on the framework recommended by the Pringle committee, and that the committee concluded that they had no alternative but to recommend a special means test. That was because of their central recommendation that the new service should not be restricted to applicants in the weakest economic class, for example, social welfare recipients, who could afford to pay little or nothing towards the cost of legal aid and advice, but should apply also to people who are better off and who could afford to contribute a reasonable proportion of that cost from their own resources. A means test based on "disposable" rather than "gross" income was recommended by the committee in order to achieve more equity. I draw Senator Hillery's attention also to that portion of the recommendations in the Pringle report.
I would think that Senator Brendan Ryan's reference to a "poor scheme" is particularly out of place. Whatever difficulties may have arisen with the scheme, I have never heard anything but the highest of praise for the professionalism that has come to be associated with the staff who are providing that particularly important social service.
The motion mentions legislation. Legislation to put the civil legal aid scheme on a statutory basis is overdue and the board have asked me to give priority to his matter. The reason it has not been possible to introduce the necessary legislation is the fact that a number of other urgent legislative commitments needed priority attention in my Department in recent years. As far as this scheme is concerned, the absence of legislation was not an impediment to the provision of service to the public or to the board's independence. I would not accept the contention that the fact that it has operated on a non-statutory basis has been a source of uncertainty or instability in the scheme up to now. I am glad to say, however, that recently I was able to inform the chairman of the board that work has commenced in my Department on preparing the necessary legislation, and I expect progress to be made on that front fairly quickly.
The legislation will place the existing scheme on a statutory basis. While I will be prepared to consider some changes in the scheme which might be recommended in the light of experience of its operation so far, I have already indicated that I do not believe there is scope for any fundamental change in the policy underlying the scheme. I am satisfied that the existing scheme meets the essential needs of people who cannot afford to pay for legal services and that the main task now is to continue the recent expansion of the scheme through the provision of more law centres in line with the board's request as soon as resources permit.
Senator Robinson takes the view that an effective civil legal aid scheme should be able to identify areas of need. By that I understand her to mean that the examination of the type and range of cases coming through the scheme should, in some instances, lead to the conclusion that there is a deficiency in law or administrative practice. I take that point. I can, in fact, tell the House that, even since February last, I have had occasion to initiate action partly as a result of situations revealed by inspection of the cases coming through the civil legal aid system. I do not wish to be more specific now, since I am preparing proposals to put to Government, but I want to assure the House that I am aware of this aspect of the system.
Senator Robinson also suggested that we should broaden our view of the scheme, in order to make each centre a means of access to education in relation to law and rights, a focus for community activity in these areas and a means of access to power in the community — in the context of knowledge being power. I disagree with that view. The function of civil legal aid is to provide people who would otherwise be unable to afford it with a means of vindicating their rights under the Constitution and the law. We may, in the process, learn of or identify deficiencies in the law, but it is not part of the function of the apparatus of the State to move into areas which are properly the concern of political movements. I think Senator Robinson will agree, on reflection, that State-sponsored political movements are to be mistrusted and will remember many cases in which she has strongly and cogently voiced her opposition to such movements.
Returning to the text of the motion, I must say that this is not the first time the scheme has been criticised in terms which would imply that the recommendations of the Pringle committee were not followed when the terms of the scheme were decided. The plain fact is that the provisions of the scheme reflect, generally, the recommendations made by that committee. In some important respects the scheme which was introduced in 1979 was more ambitious in scope and eligibility than the committee anticipated in their report. To give one example, the committee anticipated that it might be necessary to introduce a more limited, interim scheme first but, in the event, the scheme introduced was based on the committee's blueprint for a comprehensive scheme, though subject to specific exceptions.
There are some important differences, and some of the committee's recommendations were not followed, for example, in relation to the non-inclusion of private practitioner services in the scheme and the exclusion of certain cases from the scope of the scheme. But these questions were decided by the Government of the day on grounds of policy, and that is the prerogative of Government. I see no convincing reason for reviewing them again at this stage. I hasten to point out that it is neither a criticism of nor slight on an advisory committee when some of their recommendations are not followed in subsequent Government decisions.
In the matter of the involvement of private practitioners in providing civil legal aid, it is interesting to note that in Britain, where the civil legal aid and advice schemes have operated exclusively through the private profession, fundamental changes are being proposed, involving initially, the recruitment of salaried solicitors operating from legal advice centres to replace the existing legal advice scheme. There is considerable debate in Britain in this general area, much of it provoked by the escalating cost of the existing private practitioner service.
The motion mentions the judgment of the European Court of Human Rights in the Airey case. Senator Robinson and other Senators said the introduction of the civil legal aid scheme was a response by the then Government to that judgment. This is not the first occasion when a Minister for Justice felt called upon to put the record straight in this connection. The facts of the matter are that, following on earlier commitments, the Government of the day announced in May 1979 that they had approved the main features of a scheme of civil legal aid and advice and undertook to introduce a detailed scheme by the end of that year. The decision of the European Court was delivered in October 1979 and the detailed scheme was published in December 1979.
In their October 1979 judgment, that court did not decide that Ireland was in contravention of the European Convention on Human Rights because a scheme of civil legal aid did not exist here at that time. What the court decided was that violations of certain articles of the European Convention had occurred because the applicant who had taken the case did not enjoy an effective right of access to the High Court to seek a particular remedy. Legal aid as such was not the issue and in fact the court had already ruled that there is no direct right to legal aid under or by virtue of the provisions of the convention.
The court did indicate that a scheme of civil legal aid is one way to facilitate effective access to justice, but it is not the only way. Simplification of court procedures and increased jurisdiction for the lower courts are other ways. We opted for a legal aid scheme as being justified in its own right and as being something in respect of which there was already a commitment.
As regards the complementary approach to improving access to justice by simplifying procedures and court reform the Courts Act, 1981, effected considerable increases in the jurisdiction of the lower courts, including jurisdiction in family law matters. It is very interesting to note that this legislation has had a dramatic impact on the work of the Legal Aid Board in regard to family law cases. The board give statistics on this matter in their report. They show that the proportion of family law cases pursued by the board in the District Court has risen from 49 per cent in 1981 to 72 per cent in 1984 as a direct result of that legislation. They also report that the number of High Court proceedings fell from a peak of 381 in 1981 to 71 in 1984. From these figures it is clear that considerable progress has been made in recent years in improving access to justice by reform of the legal system.
Senator Robinson mentioned the same trend, but in the context of a need for a family law court or tribunal. The House will remember that the statement of the Government's intentions with regard to marriage, separation and divorce mentioned a number of proposals relating to a family court. That matter is currently under examination in my Department with a view to proceeding along the lines set out in that statement of intention.
I hope I have said enough in my contribution to convince Senators that, despite the present difficult financial climate, the civil legal aid scheme is being expanded gradually to new areas, and that the problems which the board mention in their report have been, or are being, dealt with.
I can assure the House that I shall continue to do all I can to advance the further development of the board's services under the existing very valuable civil legal aid scheme. But for reasons which I have outlined I cannot accept that there is a need to review the present scheme as proposed in the motion, beyond the commitments I have given and, accordingly, I must repeat what I said at the beginning of my remarks, which is to the effect that the language of the motion is, in my view, exaggerated.