The purpose of this Bill is to provide a statutory framework for the Government's civil legal aid and advice service. The Bill continues the arrangement whereby the Legal Aid Board provides legal services in civil matters to persons of limited means, at little or no cost to applicants. Since the vast majority of cases dealt with under the scheme are family law cases the Bill is, in substance, a family law measure, and for that reason it is a priority measure under the Government's programme of legislation and that of my Department. The Bill is part of a series of extensive proposals which the Government is pursuing in relation to family law matters, including the holding of the referendum on divorce in 1995.
The main features of the Bill are that it provides for the establishment and composition of the Legal Aid Board, the powers and duties of the board, the criteria for the granting of legal aid and advice, the type of cases which may be aided, management of finances and the powers of the Minister for Equality and Law Reform to make certain orders and regulations to give full effect to the legislation.
The vital resources of a system of civil legal aid and advice are a combination of money, staff, law centres and clear rules under which the system can operate to the benefit of the public. For most of the time since the foundation of the legal aid scheme some 16 years ago, Exchequer funding has been in short supply. Numbers of staff and law centres were not, therefore, what they should have been, and long waiting lists were a feature in most law centres. My dissatisfaction with that over the years is, I think, well known and I have always been determined to do something about it. In my period in office as Minister since 1993, funding of the board has, I am delighted to be able to say, more than doubled. It went 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 on last year. With these extra funds available over the past two years, the Legal Aid Board has been able to more than double its staff numbers.
The number of full time law centres has increased from 16 in 1993 to the current figure of 24. When the Wexford and Ennis law centres come on stream shortly, the number of full time law centres will be 26. Based on 1995 Exchequer funding increases, more centres are proposed to be opened and additional staff will be provided. Access to legal aid has been greatly facilitated by these major developments and waiting lists have been reduced dramatically.
For too long the board and its staff have had to plough a lonely furrow in providing a service to needy clients without proper funding, not enough law centres and insufficient numbers of staff. I wish to make special mention of those solicitors and other board staff whose dedicated service kept the legal aid scheme going during the lean years and to express my appreciation of them. The board now has a nationwide service and the necessary staff resources are being made available.
The scheme, which has been in operation since 1979, was established against the background of the report of a Government appointed committee under the chairmanship of Mr. Justice Denis Pringle. The main features of the scheme were announced in May 1979 and anticipated by some months the judgment handed down by the European Court of Human Rights in October 1979 in a case taken by Mrs. Johanna Airey against the Irish Government in the matter of access to the courts.
Many of the provisions in the scheme are in line with recommendations contained in the Pringle report. That is not to say that all of the report's recommendations were followed; there were some significant differences. The committee considered, for example, that a mixture of law centres and solicitors in private practice offered the optimum basis for servicing a civil legal aid scheme. However, the scheme until recently provided only for the use of the board's own salaried solicitors in law centres. The board had no authority under any circumstances to avail of solicitors in private practice.
I formed the view when I took over responsibility in relation to the Legal Aid Board two years ago that the time was right to embark on an initiative in this regard, to provide for the introduction of a pilot project for the use of private solicitors to supplement the services provided by solicitors in law centres. I have made provision in the Bill to enable the board to avail, where necessary, of private solicitors. However, the main work of the board's legal services will continue to be the responsibility of the law centre solicitors.
To assist the House in its consideration of the Bill, I now propose to explain briefly the manner in which the existing scheme of civil legal aid and advice operates. This is relevant to the debate because an understanding of that scheme, on which I am basing the statutory scheme, will be useful when we come to deal with the details of the Bill.
In order to qualify for assistance under the present administrative scheme, an applicant must satisfy two basic eligibility tests. The first of these is a means test and the other is a merits test. An applicant is eligible on financial grounds if his or her "disposable income" and "disposable capital" are within certain 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, 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 have the appearance of being a complex matter. However, the simple aim is to find the value of the applicant's disposable capital, which is its gross value, less, for example, the cost of realising assets, outstanding loans etc.
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. It is worth mentioning that while the incomes 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 separately and apart. The effect of this rule is that in a very high proportion of matrimonial cases, a wife will qualify for legal services, even if her husband is 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.
Different considerations apply in the case of applications to the board concerning children. Senators may be aware that this is the effect of a decision of the Supreme Court in the case of M.F. v. Legal Aid Board and Others ([1993] 13 ILRM 797). Following that decision the position has been that a person applying on behalf of a child who is otherwise eligible for legal aid should not be refused it under the merits test unless the board considers that there is no reasonable likelihood that the applicant's point 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. The board, therefore, has considerable scope to grant legal aid in cases concerning children on the basis primarily of the means test.
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 purpose of the scheme is not to put the person of limited means in the position of the person for whom "money is no object" but in the position of the person whose means, while not over-abundant, are sufficient to cover essential legal services.
Under the scheme applicants for legal services are liable to pay certain contributions. The minimum contribution is £3 for legal advice plus a further £16 where the applicant needs to take or defend court proceedings. An important feature of the contribution system is that, generally speaking, the individual applicant knows from the outset what the maximum cost of the legal service will be, even if he or she loses the action. 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 services, or where his or her financial circumstances change for the better as a result of obtaining such services.
There are three final points concerning contributions which are worthy of special mention. First, all persons depending solely on social welfare payments qualify for legal services on payment of the standard minimum contributions I have referred to, that is, £3 for advice plus a further £16 for representation in court. Further, 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. In addition, contributions may in certain circumstances be paid by instalments.
Certain matters, including representation before tribunals, are excluded from the scope of the existing scheme. This does not mean, however, that applicants seeking assistance for tribunal hearings are turned away from law centres. The situation is that law centre solicitors can, and regularly do, provide advice in connection with cases coming before tribunals. They do not provide representation at the actual tribunal hearing. If, however, the decision of the tribunal is appealed to the courts, both legal aid and advice may be provided. I will refer again to tribunal hearings later.
Other excluded matters under the existing scheme include defamation, debt collection where the applicant is the creditor, civil bills for sums below £150, election petitions, licensing matters and disputes concerning rights and interests over land and conveyancing, other than conveyancing which arises following a settlement of a matrimonial dispute or where the applicant suffers from an infirmity of mind or body and appears to have been the victim of fraud or undue influence.
So much for the existing scheme. I turn now to the main details of the Bill. Section 2 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 allows for what I intend to be a fairly short period of time to elapse between the passing of the Act and its date of operation. This time will allow for regulations to be made under the Act and for the board to put in place the necessary measures for its operation as a statutory body.
Sections 3, 4 and 5 deal with the establishment of the Legal Aid Board and charge it with the function of providing, within the board's 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 board. It will consist of a chairperson and 12 ordinary members. Two members of the board must be barristers and two must be solicitors. For the first time, staff will be represented on the board. There will be two such representatives. I am ensuring that the board will have an appropriate gender balance. Not less than five members must be men and not less 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. Under section 6, however, the Minister may assign additional related functions to the board. The board will be entitled to delegate functions to its members or its staff.
Section 7 empowers the Minister to issue general policy directives in relation to legal aid and advice to the board and requires the board to comply with such directives. This provision is necessary in view of my overall responsibility to the Oireachtas for policy in relation to legal aid. However, as at present, the board will have independence in the giving of legal aid and advice.
In section 9 I have dealt with the matter of annual reports and have adhered 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 section requires the Minister to lay before the Houses of the Oireachtas copies of every such report. The Minister may also request that the board supply additional information as 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 have been 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. It provides 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 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 the consent of the Minister for Finance. Section 23 is a standard provision to safeguard the pensions of any members of the board's staff who do not ultimately become civil servants.
Sections 13 to 17 deal with a number of technical and practical matters which arise because of the legal identity which the board will have on 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 the new board.
Sections 18, 19 and 20 deal with matters relating to funding of the board and they empower the Minister, with the consent of the Minister for Finance, to advance funds to the new board and require it to establish and maintain a legal aid 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, I believe, will enhance the legal aid system in this country.
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 will not be granted unless a reasonably prudent person, in similar circumstances, who could afford to pay for the services of lawyers in private practice would do so at their 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, as at present, be precluded from providing legal advice in relation to criminal law matters, because, as Members will be aware, such matters are dealt with under the Criminal Justice (Legal Aid) Act, 1962. The board will, however, be allowed to continue the special arrangement under which legal advice, free of charge, is provided to complainants in rape and aggravated sexual assault cases.
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, in a significant departure from the scheme, I have, in subsection (11) of section 28, provided that the Minister may, by order, deem any of these matters as no longer being designated. I think the House will agree that present policy should be to direct funds to those cases where funds are most needed, to increase the number of law centres, to provide proper staffing levels and then to assess whether the Exchequer, having regard to various priorities, should extend funding to the board for all cases.
As has been the case since the inception of the scheme, applicants will only 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. Special provisions, as at present operated under the scheme, will apply in the case of children.
The general test of merit is continued by the Bill and is supported by various other provisions in the scheme which are to the same general effect. There is provision, for example, that the applicant must have as a matter of law, 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 and so on.
The relevance of the "merits" test will be apparent to practitioners; there is very little point in legally aiding a client where it is considered that, from a legal point of view, the client's 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 a certificate of legal aid 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 certain 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 to the board, or 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, disposable capital, in such a manner as is prescribed in regulations. In framing those regulations, I intend to look closely at the financial limits currently in place and would hope to be able to broaden those limits in order to increase the number of people who are eligible to receive legal aid and advice.
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 project which I initiated last year was generally welcomed as being instrumental in helping to reduce the backlog of cases which existed because of underfunding and the lack of law centres and staff. Its operation is at present being reviewed by a committee appointed by the Legal Aid Board. Once the review group has reported, I will be in a position to determine how best the project should be used in the future to complement the work of the law centres.
Section 30 (6) is new. It 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 the smaller 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. Section 32 guarantees clients of the board the same rights as they would have should they have retained the services of solicitors in private practice, subject to one exception. That exception is that lawyers providing legal aid or advice will be obliged to pass on to the board any information which is necessary for the purpose of enabling the board to discharge its statutory functions.
Sections 33 to 36 deal with the matter of costs. To date the board, because of its non-statutory status, has had difficulties in recovering costs from non-legally aided parties. I am providing in the Bill that courts or tribunals should make orders 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 then, Senators, are the main provisions in the Bill. I am delighted that the Bill has been initiated in the Seanad. Senators will not be unaware that this is the fourth Bill I have initiated in this House in two years.
