This is a technical amendment only. The definition of officer of the board does not include a solicitor of the board. It involves the deletion of the word "officer" and its substitution with the words "member of the staff". Its effect is to include solicitors of the board, as defined in section 1 of the Bill, among the persons to whom functions of the chief executive may be delegated.
Civil Legal Aid Bill, 1995: Committee Stage (Resumed).
There is a tradition in the House of raising the issue of the functions of chief executives or Ministers. For example, I held a long discussion recently about the implications of the Ministers and Secretaries Act and powers which can be devolved down. What functions of the chief executive could not be carried out by another member of the staff and would need to be done by a solicitor? Does the Minister have a particular issue in mind? Is the Minister talking about a solicitor appointed from outside or one attached to the board? What are the exact circumstances where this would be necessary?
Do those points relate more to the section than the amendment?
No, they relate precisely to the amendment. I understand "member of the staff" includes a solicitor, whereas "officer" does not. The impact of the amendment is to extend the devolution of power to include a solicitor.
That is precisely the point and there is a very clear and obvious reason for it, in that decisions must be made on whether and when legal aid will be granted to a particular applicant in a particular case. These decisions are devolved to solicitors in the law centres. It is to avoid all applications having to come back to head office. There is a local subsidiarity type arrangement in the law centres where they are given certain powers to approve an application there and then and get on with the case.
It is purely a technical drafting amendment.
Amendments Nos. 25, 26 and 27 are related and all may be discussed together.
The purpose of these amendments is to make quite clear that the legal aid fund includes all the resources of the board and to require the board to maintain an account of all such resources for audit purposes.
Amendments Nos. 28 and 29 are related and both may be discussed together.
I move amendment No. 28:
In page 13, subsection (2), line 26, to delete "as soon as may be", and substitute "not later than three months".
This amendment reflects the dislike that people on these benches have for open-ended chronological statements. It is not meant in an adversarial way; it is simply to see if a phraseology which imposes a specific time limit can be introduced here in place of what seems to be the open-ended phraseology "as soon as may be". I suspect that this tends to be the phraseology in all legislation of this sort. However, there has been a consistent move from these seats to try to get some time limit imposed which is desirable in these areas. I would welcome the Minister's observations on whether he thinks the specific time limit involved is either reasonable or unreasonable, and how one might more effectively tighten up this type of proposal.
I support Senator Lee's amendment. He made a similar case in relation to another amendment. However, in this instance it is particularly important that the accounts should be available not "as soon as may be" after the end of a certain period but within a specified period. If one is to monitor the effectiveness of this change, putting civil legal aid from a non-statutory basis to a statutory one, one has to look at what funds are required and whether there is a need to increase them. On a previous amendment, the Minister explained why a time limit was not appropriate but this one is important and I support it.
Subsection (2) of section 20 requires the board to submit its annual accounts as soon as may be after the end of each financial year to the Comptroller and Auditor General for audit. A copy of the Comptroller and Auditor General's report on the accounts must be presented to the Minister as soon as may be. Senator Lee's amendment No. 28 would have the effect of compelling the Legal Aid Board to submit its accounts to the Comptroller and Auditor General before the end of March each year. I think it would be counter productive to impose an unduly tight deadline on the board. There could be situations where that kind of deadline could not be met for one reason or another. However, I am disposed to accepting the principle of imposing some deadline. I am prepared, therefore, to consider the question of an amendment on the matter on Report Stage.
Amendment No. 29 would require the Comptroller and Auditor General to submit his or her report on the board's accounts to the Minister before the end of June each year. There is separate legislation governing the Office of the Comptroller and Auditor General. I am advised that the substance of amendment No. 29 would be a matter that would fall to be dealt with in the context of policy in relation to that special legislation rather than the Civil Legal Aid Bill and, consequently, I am not in a position to accept amendment No. 29. However, I have indicated my position on amendment No. 28 and I will consider that one for Report Stage.
That is a reasonable response by the Minister on amendment No. 28. I accept the problem that amendment No. 29 creates for him in his current capacity. I dare say it is a matter that might be taken up elsewhere by those of us who are concerned about that. In the light of the Minister's assurance and the approach he has adopted, I am prepared to withdraw the amendment.
This is simply a drafting amendment which helps to make clear that it is for the Legal Aid Board to operate the general criteria set out in section 24 for the granting of legal aid and advice. It is a drafting amendment only.
This is significantly more than a drafting amendment. It changes the nature of it. We have now brought in a factor called "the opinion of the board". The conditions, as written, are quite clearly stated in (a) and (b). The amendment is not necessarily for drafting and there is certainly no drafting need for it at all. Taking it to its logical conclusion, it actually dilutes the impact of section 24. I feel quite strongly that this amendment is not necessary. It takes from the impact of that section and I would ask you not to put that forward.
I could not accept those comments. As I see it, it is purely a drafting amendment to make quite clear that it is the Legal Aid Board which determines and interprets, in its own opinion, the basis on which legal aid is to be granted. That is a normal procedure in the operation of powers by the board. They have to exercise their opinion on the matter and this is a drafting amendment which is simply to clarify that.
The way the Minister put it sounds reasonable but, unfortunately, the problem arises in the event of a challenge to the legislation. As things stand, somebody could say they qualified under (a) and (b). However, in future the challenge would be not just to (a) and (b) but the opinion of the board in the interpretation of what (a) and (b) meant. Theoretically there could be a conflict because a judgment could be made by certain people that the person qualified under (a) and (b), yet the board might say that in its opinion the person did not qualify. There is a movement from a factual position to a position determined by opinion and, in the event of a challenge to the section, that weakens it considerably.
To concentrate on the earlier point, it is quite clear that there is no drafting reason for putting this in. If it were a drafting reason it would be inserting a clarification of words that were unclear, but as it is written down there it is very clear. We do not need to go into every other section of the Bill to insert "unless" and "in the opinion of" because certain things are understood. The question, however, is whether an opinion is different from a decision, and whether an opinion dilutes (a) and (b). It raises a whole lot of hares in a piece of legislation which has already been criticised for being too narrow. This amendment narrows it still further and I appeal to the Minister not to move it at this point.
The amendment is absolutely essential. Let me put it this way. The section sets out criteria for the granting of legal aid and advice in each case. Criteria are set out in the Bill. I think Senators will agree someone has to determine whether those criteria apply in a given case. I can only offer two fora — the Legal Aid Board and the courts. Are the courts to determine in every case as to whether a person should get legal aid? That would not make sense and consequently someone must determine whether the criteria have been met. Who else can we reasonably ask or expect to make that determination but the Legal Aid Board? That is its function.
Who makes the decision at present?
The Legal Aid Board.
Are there problems with or queries about that system, or is it deemed to function reasonably effectively?
It works extraordinarily well, as I understand it.
That is precisely why I am worried about this change. If it is not broken why fix it? These words will dilute the Bill. I am not prepared either to agree to the amendment or to push it to a vote, but I want it re-examined. I am always worried when opinions are made part of legislation and they are now in two places in the Bill. The provision about the solicitor or barrister acting reasonably involves an assessment of an opinion and there is an opinion on that opinion.
Someone must make the determination.
I understand that, but a determination and an opinion are slightly different.
I share the Minister's view. Unless this amendment is made no one is empowered to decide who gets legal aid. This was missing from the original draft of the Bill and if it is not included a person could petition the Minister on the basis that he should decide who gets legal aid. It is imperative that the board gives an opinion. This ties in with an amendment of mine which I hope he will accept.
Amendments Nos. 31 and 33 are related and may be discussed together.
These are technical amendments which involve deletion of the word "charge" and its substitution with the word "contribution" where it appears twice in section 26. "Contribution" is used elsewhere in the Bill and is defined in section 1.
I move amendment No. 32:
In page 16, subsection (3), line 36, after "1990,", to insert "or of unlawful carnal knowledge under section 1 or section 2 of the Criminal Law Amendment Act, 1935, or of incest under section 1 or section 2 of the Punishment of Incest Act, 1908,".
Section 26 (3) provides that complainants in rape and aggravated sexual assault cases are entitled to free legal advice. My amendment would extend that right to complainants in defilement and incest cases.
It is recognised and provided for in the Bill that women, who are usually witnesses for the State, should have access to legal advice in rape cases. Often women feel they are on the sidelines and the accused gets most support from the State by way of legal advice. We have had much discussion about incest during the last Bill which was steered through the House by the Minister for Justice and I ask this Minister to make this extension. There should not be too many cases, so this provision will not unduly clog the free legal advice system. Defilement cases involve girls under 15 years and we know what is involved in incest cases. We recently extended other provisions in the Rape Acts to cover incest cases.
I support this amendment. The Minister will have acquainted himself with the debates in this House on incest. His colleague, the Minister for Justice, said there might be new legislative provisions on offences under the 1935 Act. In some incest cases the victim is not the complainant but the person against whom the offence is alleged to have been committed, as it is phrased in the new Bill. It is important that the alleged victims, especially in incest cases, should have access not only to the caring agencies — as has been covered in the Criminal Law (Incest Proceedings) (No. 2) Bill — but also to legal advice. Those victims come to the State at a time when they are vulnerable, confused, terrified and disoriented by what happened to them. Their legal rights should be clearly explained to them, because events in the court may reflect on their future. Unless the Minister feels there is a compelling reason why this amendment should not be made, he should accept it.
I support the principle of the amendment. As we said last week, victims of incest are traumatised and vulnerable and need all the assistance we can give at a crucial time in their lives. They often feel isolated and should have access to free legal aid if they require it. The Minister should look carefully at the amendment and only refuse it if there is compelling legal reason for not accepting it.
This amendment is in the spirit of what the Minister has provided for in the Bill by including rape and aggravated sexual assault in this section. I hope he will be able to accept at least the principle of this amendment. These are related matters and the two areas covered in Senator Honan's amendment are logically connected to those already included in the Bill. I support the principle of the amendment.
The amendment is a logical extension of the thought processes in the Bill as it stands. For the reasons advanced by the previous speakers, I warmly support it also and hope the Minister will be able to accept it.
There is an additional reason for supporting this amendment. At this time there is much public concern about child abuse, child sexual abuse in particular. Acceptance of the amendment would send a healthy signal, because many people are worried about this area of the law. It is reasonable to cover incest in this section.
There is much debate currently about what people can do when they suspect something and how allegations of this kind can be brought to a conclusion. Senator Honan's amendment is a practical way of dealing with the matter in a way which is in line with the Minister's thinking. I urge that the amendment be accepted.
In response to the persuasive arguments of Senators on all sides of the House, I am disposed to accept the principle of this amendment. I wish to ensure the technical drafting meets the situation and therefore propose to look at the matter between now and Report Stage. In those circumstances the Senator might consider withholding the amendment until that time.
I thank the Minister. I will withdraw the amendment.
Amendment No. 33 has already been discussed with amendment No. 31.
We have accepted the Minister's amendments to change "charge" to "contribution". If a person is not able to make the contribution as distinct from the charge, what will happen? It is, in effect, a charge for the service, although it will be called a contribution in the legislation.
The board will have discretion to waive it.
This is a drafting amendment. It makes it clear that legal aid encompasses representation by a solicitor or a solicitor and barrister acting in the case. This subsection repeats the substance of subsection (1) as it stands in the Bill and introduces some small changes of a drafting nature only. The main change is a substitution of the word "and" for "or" in line 3, page 17, and that amendment reflects the fact that when a barrister acts in a case he or she will act with a solicitor. The previous wording may perhaps have suggested otherwise.
Amendment No. 36 is an alternative to amendment No. 35 and both may be discussed together.
I move amendment No. 35:
In page 17, subsection (2) (a), line 11, after "Court,", where it secondly occurs to insert:
"the Employment Appeals Tribunal and tribunals hearing appeals under the Social Welfare (Consolidation) Act, 1993 as amended,".
The general arguments about this amendment have been made on Second Stage. I am sure the Minister will be sympathetic. He may have heard, as I did, Ms Iseult O'Malley on the radio this morning speaking on the substance of an amendment such as this. It is intended to direct legal aid precisely to the most vulnerable in the community so that people can be represented with the assistance of legal aid at those bodies where they may have the greatest interest, such as the Employment Appeals Tribunal or the tribunals hearing appeals under the Social Welfare (Consolidation) Act, 1993, as amended.
It is in line with the Minister's general philosophy as I understand it, if I may be impertinent enough to say so. The feeling was expressed by various groups that the Bill was a considerable improvement but it was too narrowly focused and did not direct the resources of the State sufficiently or with sufficient focus to the most vulnerable in society. This amendment would have that effect and I urge the Minister to accept it.
I understand an amendment has already been accepted this morning so there is clearly no embargo on accepting amendments. I would welcome the Minister's views on this amendment, with the spirit of which I have no doubt he agrees. If he has a difficulty it is probably financial; if so, we might be able to come back with some moral support from the Government side.
I also tabled this amendment. My interpretation of the Bill is that this will happen, but the Minister is not putting it into the legislation. The Minister may by order at a later date allow for representation at the Employment Appeals Tribunal etc. We want it incorporated in the legislation now rather than have it done later by order. It is important to extend the scheme to cover Employment Appeals Tribunals and social welfare tribunals and it should be done now rather than later by way of order.
I support the amendment. Section 27 (2) (b) contains the essence of what we are looking for, but it is because it is proposed to do it by order and not by legislation that the amendments are proposed. It comes down to the unfortunate fact that the Minister will not be the Minister forever and the amendment is to ensure that his successors interpret the section in the way in which we are confident the Minister will, if I may combine that ingratiating flattery with the essence of the amendment. We do not want to depend on the "by order" provision permanently.
I support the amendment. Successive Ministers responsible for labour have indicated that in their opinion the Employment Appeals Tribunal is supposed to be informal. It would not be good if it were automatically implied that each side had to be represented by legal advisers. It is specifically the philosophy, although perhaps that is changing, that these cases should mostly be informal.
There are cases in which one side only is represented by a solicitor and, perhaps, a barrister. This is unfair if a person, usually the employee, finds the employer has a solicitor or barrister available to them to try to bamboozle the employee with legal knowledge. I support the amendment. Legal aid should be available for the Employment Appeals Tribunal, but there should be guidelines so that every single case at the tribunal does not involve legal advisers.
I support this amendment, which is in the same spirit as my amendment No. 36. It is essential that tribunal cases are not excluded any longer. There should be an immediate provision for their inclusion. Experience of the free legal aid system has shown there is considerable demand for such a service. It is not acceptable that a social welfare claimant facing an appeal which might involve technical legal issues cannot get legal aid when the decision in the appeal will determine their level of income. It must be put in the legislation. The present Minister is well disposed to this, but he may not be the Minister forever. Matters such as this tend to drift on if they are not tied down when the Bill is being passed.
As Senator Mulcahy said, in Employment Appeals Tribunal cases employers usually have the means to provide legal advice for themselves. Statistics have shown that a large number of the employees are without legal advice and it is difficult for them to argue their case and get a satisfactory outcome.
I support the principle that legal aid should be available. Unfortunately, the Employment Appeals Tribunal has developed into a legalistic forum. It was never meant to be so and the tribunal itself is unhappy about it. I am a member of the tribunal and in 80 to 90 per cent of our cases both sides are represented by solicitors and barristers. When the tribunal was initiated one rarely saw a legal presence at the tribunal and this is an unfortunate trend.
The awards the tribunal can make are limited and it is disappointing to see the awards being taken up by the legal costs, which should not be there in the first place. There were never meant to be such costs on claimants going before the tribunal. Unfortunately, that is how it has developed and people believe that if they do not have legal representation, they cannot present the best case. The tribunal is conscious when hearing a case that the full facts must be heard. It is also conscious that when one side has legal representation, there is an onus on the tribunal to get to the truth regardless of the level of representation or expertise on either side.
Initially, the industrial relations people dealt with cases at the tribunal. On the employer's side, they were dealt with by the FUE and IBEC and, on the employee's side, by the trade union officials and it was effective. Unfortunately, since the introduction of the Unfair Dismissals Act in 1977, the process became progressively more legalistic and now, in 90 per cent of cases, both sides are represented by a lawyer and often by both a solicitor and a barrister. If a person is found to have been unfairly dismissed, their award is effectively a loss. If he or she is likely to be re-employed, the award can be quite small in relative terms. The average award is about £7,000. If a person has large legal expenses following a three day hearing for example — cases often last two and three days if they are complex — much of the award goes towards the cost of legal representation.
Much debate is taking place on how to reverse that situation. At this stage, having thought a lot about it over a number of years, I think it is impossible. We will never remove the legal presence from the process, and that is unfortunate as it was never meant to be that way. However, we must be realistic. People appearing before the tribunal believe they will not get their best shot unless they have the full battery of legal advice and legal representation. For that reason the Minister should seriously consider including this amendment. I mentioned this on Second Stage and I recall the Minister saying the Bill catered for that situation. I ask him to clarify it in his reply.
When we discussed the Unfair Dismissals Bill last year, similar matters were raised in the context of the enforcement of Employment Appeals Tribunal awards. At that time I highlighted the fact that in many cases — certainly some cases of which I am aware — companies were refusing to pay substantial awards granted by rights commissioners and subsequently endorsed by the Employment Appeals Tribunal. The persons involved had to resort to the courts to seek to establish their claims. I support these amendments. I want to clarify if free legal aid will be available if these cases go to the High Court.
My understanding is that if an award of the tribunal is not implemented, the Minister for Enterprise and Employment takes the case on behalf of the claimant and the costs are borne by the State.
That is since the new Act was passed.
No, it is since 1977 and prior to the new Act.
The reality is that in many cases where rights commissioners and the Employment Appeals Tribunal granted awards, the employer has refused to pay the persons involved, leaving them no other option but to resort to the courts. I am aware of a case pending where the——
That might be an appeal. If the decision is appealed to the courts, that is a different matter.
They were awarded damages by a rights commissioner arising from an unfair dismissal and this was endorsed by the Employment Appeals Tribunal. In one case the person has been waiting for almost five years and the case is due to come before the High Court shortly. Can that person get free legal aid under this legislation?
A person could get legal aid to secure implementation of an award if a court application was necessary. The definition of civil legal aid is contained in section 27 of the Bill. Subsection (1) defines legal aid as meaning "representation by a solicitor of the Board or a solicitor or barrister, engaged for that purpose by the Board ... in any civil proceedings to which the section applies ...". Subsection (2) extends the scope of the section to include cases conducted in the District Court, Circuit Court, the High Court or the Supreme Court or cases conducted in any court or before any tribunal for the time being prescribed by the Minister with the consent of the Minister for Finance.
As Senators will have noticed, I have specifically included in section 27(2)(b) a provision which will enable the Minister, with the consent of the Minister for Finance, to expand the scope of the statutory scheme to include tribunals such as those specifically mentioned in the Senators' amendments. The effect of the Senators' amendments would be to pre-empt my examination of the feasibility of extending the scope of the scheme of civil legal aid and advice to the Employment Appeals Tribunal and the Social Welfare Appeals Tribunal. If I were to accept either of the amendments the tribunal in question would, once the Bill was passed, come within the scope of the statutory scheme.
While I readily understand the intentions of Senators in moving these amendments I cannot accept them at this stage as their impact on the Legal Aid Board would be far reaching. It might help to highlight the difficulties involved if I explained that in 1993 the Legal Aid Board provided legal representation in 2,411 cases. In the same year the employment appeals tribunal heard 5,710 cases. In 910 of those cases the employee was legally represented. Given the nature of cases heard by the Employment Appeals Tribunal, I estimate that almost 99 per cent of the employees in question would have been eligible for legal aid if Employment Appeals Tribunal cases had come within the scope of the scheme of civil legal aid and advice.
If such cases had come within the scheme, it is reasonable to suggest that the board's case load in 1993 would have been increased by some 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 and other cases. In the same year the Social Welfare Appeals Tribunal decided 14,115 appeals. Once again the overwhelming majority of individuals involved in those cases would have qualified for legal aid had it been available. As I have explained, the extension of the scheme to cover EAT cases in 1993 would have put law centres — not to put a tooth in it — under tremendous pressure.
My priority at present is and must be to ensure that we have a nationwide service which is reasonably accessible to clients in all counties of Ireland and to ensure that waiting lists can be kept to an absolute minimum. The board must be in a position to deal effectively with priority family law cases. That having been said, I should point out at this juncture 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. Despite the problems which will inevitably arise, I assure the House that the question of extending the scope of the board's activities to cover tribunals such as those referred to in the Senators' proposed amendments will be considered in the context of the implementation of the substantial developments in the board's services which are under way. Regrettably, I am not in a position to be able to guarantee anything at present and I must oppose these amendments.
The Minister was honest and direct and has confirmed what I said in my first submission that his heart is moving in this direction and that he wished he had the funds. It comes down to a question of funding and it is appropriate that this House should strengthen the Minister's hand by having a strong debate. As has been demonstrated, all sides of the House support the spirit of this amendment. It is clear that it is a question of finance and the Minister did not shelter behind the arguments which were proffered to him from this side of the House that it would be a matter which would be dealt with by regulation. Some of my colleagues suggested that the Minister would do it, but the problem was that other Ministers might not.
The difficulty, however, is more fundamental than that, because the Minister has indicated honestly and clearly to the House that he has a difficulty in that he would like to extend the scheme but he does not believe it would be possible. He said that 2,441 cases were dealt with by the Employment Appeals Tribunal, while the social welfare tribunal dealt with 14,115. That is a large number and I appreciate that it might be seen to swamp the existing legal aid services. However, I believe it is a clear argument for the expansion of that service. Can we be certain that the 2,441 people who appealed to the Employment Appeals Tribunal and the 14,115 who appealed to the social welfare tribunal get the same measure of justice without being adequately legally represented as they would if they had access to these services which are in the reach of the moneyed middle classes?
It worries me that the Minister seems unable to accept these amendments, although I understand the practical difficulties. I am sure he will note that speakers from all sides of the House, including Government parties, made clear arguments in support of this extension. Senator Neville, in particular, gave illustrations from his own experience of working on these tribunals.
As regards the human situation, people who see the opposing party coming to court with legal representation will feel that they are inadequately represented if they do not possess such representation themselves. I am reminded of a story about a dispute over land by Seamus O'Kelly, a distinguished Irish writer. Neither party understood the legalities of the matter, but one party to the dispute said that if the other party had a solicitor then so did we. that he was a fine, big fat man; and if they had a roll of maps, then we had a roll which was twice the size. That is the psychology which one sometimes finds.
Despite accepting the truth of what has been said about the nature of tribunals by Senator Mulcahy, who presumably has experience in these areas as a legal person, that they are supposed to be informal, nevertheless, as the Minister knows, there is a growing body of legislation in this area which is quite complex and which is held under the rules of evidence which the average citizens may not fully understand. It is not entirely fruitless on my part to urge the Minister to think again, because I know his heart is in the direction of this amendment but he appears to be constrained by financial realities. I wish this was not so and if anything can be done in this House by this debate to strengthen his hand in bargaining for that money, then it will at least have formed a useful part of the discussion.
I am disappointed by the Minister's response. I accept what Senator Norris said that the Minister would probably like to bring this forward and that he is being honest in pointing out the financial implications. The Minister will be aware that in many cases people coming before the Employment Appeals Tribunal would not qualify for legal aid. Many of those coming before the tribunal have hefty salaries.
Why would they need free legal aid?
They would not qualify. I am surprised that a Labour Minister for Equality and Law Reform would deny employees who do not have enough money the opportunity to seek redress against employers who have plenty. If the Minister wants to be egalitarian, it is possible to draw up guidelines so employees who do not have adequate resources will be able to obtain the assistance of the Legal Aid Board.
I was a vice-chairman of the Employment Appeals Tribunal for four years and I found that only in exceptional cases — the free legal advice centres will agree with this — people did not have resources, because most would have been in employment. The Act states that they must have been in continuous employment for at least one year. The only people who would come to the Legal Aid Board for legal assistance are those who have been on low salaries in the previous year and would not have enough money to pay for it.
It is time for the Minister to make the quantum leap to extend this to people who are trying to vindicate their rights as employees and to make this provision, for which there seems to be all party support. From my experience as vice-chairman of the Employment Appeals Tribunal, I do not believe the Minister would be overrun with anything like the numbers he suggests. If he believes otherwise, I would ask him to spend a few weeks in the Employment Appeals Tribunal so he could see that what I have said makes sense.
As regards the social welfare issue, no area of law is more complex than the social welfare code, which is labyrinthine. As public representatives, when we contact the Department of Social Welfare on a matter it may take an official days to understand the problem and the correct regulation or statutory instrument which applies to the case of a particular person. It is unrealistic to suggest that a member of the public can go to a social welfare appeals tribunal and argue with equal authority or knowledge as that of officials who spent their lives doing nothing else but reading the Acts and the statutory instruments. It is disappointing that the Minister would deny the poorest people in our community the ability to vindicate their rights under the Social Welfare Acts. This amendment should be accepted.
I disagree with Senator Mulcahy on the basis of the number of people coming before the Employment Appeals Tribunal and their ability to pay the fee. These people have been dismissed from their jobs. It is rare that a case comes before the tribunal within six months of a person being dismissed; it is usually 12 or even 18 months. These people have not been employed for that period and are often on social welfare. Their standard of living will drop substantially, and because of the nature of the tribunal before which they will appear they would not have the money to pay expensive lawyers.
The Minister pointed out that if we accept this amendment it could have serious consequences for free civil legal aid. The budget would need to be quadrupled to ensure it meets its obligations. During the last year of the previous Government and this year substantial increases were given to civil legal aid. I welcome this development which should be continued. Will civil legal aid collapse if we put an onus on the Minister to supply four times the present figure? I do not believe the Minister for Finance will write a cheque.
He has in other cases this year.
Please allow me to finish. I did not interrupt the Senator, although I had good reason to do so.
The Senator has not given me one good reason yet.
Senator Neville, without interruption.
Would the Senator not accept that most people who go the Employment Appeals Tribunal are not well off financially?
That is why I am still on the Employment Appeals Tribunal and the Senator is not.
The Senator is still on the tribunal because his party is in power.
I ask Senator Neville to speak to the amendment.
I am surprised at Senator Mulcahy. I have been on the tribunal since 1988. I am not a lawyer, so I am nominated by an outside body. If we accept the amendment, we will have civil legal aid for three or four months of the year and then it will collapse.
I am not a party person and I do not have the personal knowledge of previous speakers, but I am disturbed by the trend this discussion is taking. The logic of the Minister's position seems to be that the worse the situation becomes in the Employment Appeals Tribunal and social welfare areas, the less chance there is of anything being done about it. The present figures preclude the possibility of doing something because the money is not there. The worse those figures become, the greater the possibility of preclusion unless the money increases.
Senator Neville's remark about the conditions of people who apply in these areas — if I understand the situation correctly — suggests something rotten at the core of justice in our society if these people cannot get access to adequate and fair representation which gives them equal access to those on the other side. I do not mean "rotten" in a nasty sense about any individual, but I am disturbed at the inequity in the functioning of these boards.
It seems we are allowing ourselves to be confined by our assumptions about what money might be available. The figure, approximately £6 million, although I am open to correction, has increased substantially under the Minister, for which we have expressed our appreciation. To quadruple it would bring it to £25 million. That may seem beyond the bounds of possibility from one perspective but. objectively speaking, this is a small figure in the context of total expenditure. From a Department of Finance point of view every figure seems huge, but the issue at stake, if I understand the trend of the discussion correctly, is a fundamental one about basic justice. We should not allow ourselves to be inhibited at this stage by saying the money is not there to rectify a fundamental injustice in our society. I am more convinced by my own and other Members' amendments than I was at the beginning.
I share Senator Lee's opinion. I accept the reason given by the Minister and I acknowledge that he has given a substantial amount of resources to this area. We will not have such legislation before us again for a long time. The extension by order of civil legal aid to the Employment Appeals Tribunal and the social welfare tribunal at a later date, with the consent of the Minister for Finance, will never happen. It would strengthen his position to incorporate it in this legislation.
I accept that the majority of cases under the civil legal aid scheme are family law cases. However, that does not give us the right to decide that they should automatically qualify for assistance and funding. Family incomes in social welfare cases and Employment Appeals Tribunal cases are either nonexistent for a period of time or in dispute. Such cases force people into the family law courts. Huge burdens are placed on a poor family if their income is taken from them, either temporarily or permanently, and this causes them to take family law cases.
The Minister referred to this on Second and Committee Stages. He acknowledged that this would form part of the pre-divorce legislation. However, this legislation can do more in this regard. I do not want it used as a tool or a pre-referendum mechanism for a successful outcome. It must do more than that. If we incorporate it into the legislation we will strengthen the Minister's hand when he asks the Minister for Finance for money to look after the other cases as well.
I have been to the appeals officer with constituents and they are as afraid as those who must go to court. They believe they cannot make their case properly or they will not be listened to. As Senator Mulcahy said, they are bamboozled with technical jargon and legal language. These people deserve our support in this Bill. In the circumstances I will press my amendment.
In an ideal world we would like Employment Appeals Tribunal cases to avail of free legal aid. However, in the real world there are waiting lists which are being reduced thanks to the actions of the Minister. We asked and it was accepted that extra cases should be included, particularly in relation to rape, incest and other sexual offences. I listened to the figures which the Minister gave earlier. On the Order of Business this morning Members on this side of the House said they were concerned about the budget and tax and expenditure. However, we must be practical as well. The Minister has indicated that the Employment Appeals Tribunal, in particular, will be considered in the future. We must ensure that the cases included in the Bill will be taken and that they will be able to avail of free legal aid. We do not want long waiting lists again.
As regards the two aspects of this amendment, preference should be given to Employment Appeals Tribunal cases rather than social welfare ones. If the financial situation improves the Minister can include them at a later date. I have not attended an Employment Appeals Tribunal case but, from what has been said today, people seem to have legal representation. I have experience of social welfare appeals, but there has never been legal representation at those cases. They are informal so that people can explain their situation in a simple and practical way. Employment Appeals Tribunal cases should be given precedence over social welfare appeals.
I do not want social welfare appeals going the same way as the Employment Appeals Tribunal because that was not the intention. I am not sure of the law in this area, but people do not always get oral hearings when they appeal against a social welfare decision. I do not want their right to appeal to be curtailed for financial reasons.
I am concerned that these two are being discussed together. We have focused mainly on the Employment Appeals Tribunal which is different because it has become so legalistic. Perhaps the Minister could ask the Minister for Finance to give him the type of finance necessary in this regard. If he is considering the inclusion of one or other of these areas, it should be the Employment Appeals Tribunal. We must be practical because I would hate the waiting lists to increase again.
I support the amendment and refute the Minister's arguments. We are effectively deciding to limit the access to justice of certain people. I do not think we have that right and it is not any comfort to say that we have no waiting lists or very short ones because we have excluded many people from ever getting on to the waiting lists in the first place.
We have a bad history in this regard. The Airey case had to be taken to Europe to force this country to give free legal aid. We then had the case of social welfare equality payments for women which also had to go to Europe. We refused through the years to make these payments until we were forced to do so. I welcome the fact that this Government has eventually decided they have to be paid. We are learning nothing from our past mistakes.
People on social welfare are living at the minimum level of existence. It is extremely difficult for them to survive. If they have to appeal their cases and lose, on what will they live? They do not have the luxury of being able to wait and consider the matter further. I am concerned that many of them will be women who are financially dependent on other people all of their lives. We are reinforcing this financial dependency and are creating situations, as Senator McGennis said, in which people are ending up in the family law courts because of the desperate financial situations in which they find themselves.
Like other Senators, I am more convinced now of the arguments for these amendments than I was at the beginning. We do not have a hope of getting this accepted if it is left to the Minister to introduce an order because the financial considerations will be so great that the Department of Finance will put forward huge arguments against it.
May I disabuse Senator O'Sullivan of the notion from which she apparently suffers, which is that she is the sole inhabitant of the real world? When we come up against difficult situations people often say we have to live in the real world. I think the 14,115 people in one appeal situation and the 2,441 people in the other appeal situation are living in a very real world indeed.
I have operated successfully in a maverick way by creating crises of various kinds. Crises are useful things to have from time to time, particularly in terms of finance. When we took over the James Joyce cultural centre, we only had about six pence in an old shoe box. We created crisis after crisis and coerced people into paying. Sometimes people do not get money until they have created a crisis. This has been the situation with FLAC. It would not distress me terribly to create a temporary crisis if it had the effect of releasing money.
I hope the Minister does not feel I am antagonistic but I feel a vote coming on. This is not in any sense to be construed as antagonism towards the Minister or a misunderstanding of his genuine goodwill in this area. I agree with Senator Lee and others who said they are more convinced by their own arguments, the arguments of others and the frankness of the Minister with every minute of this debate which passes.
I know the phrase about cherishing the children of the nation equally is not in the Constitution but it is contained in the 1916 Proclamation and is close to the hearts of most politically-minded people. As a republic we seek to cherish all the children of the State equally. If we do not register the strongest protest here, we are collaborating in the institutionalisation of a two-tier system of justice.
On Second Stage I spoke about research and the question of money was also raised then. May I illustrate to the Minister why the kind of research of which I was thinking would be vital to this sort of discussion? The information I would like to have is the balance and the proportionality of cases which were successful, divided between those clients who were legally represented and those who were not. I believe we would find there is a very severe imbalance. This is my gut feeling but we do not have that information. I am sure that, as a distinguished lawyer, the Minister will realise that for all sorts of reasons there is inevitably a kind of class justice operating. If one is legally represented, one has a far higher chance of being successful in any legal forum. This should not be considered as an advertisement for the legal profession but I think it is true. We are disadvantaging some people.
In some of what the Minister said, I had the feeling he was saying that if we do this we will create a crisis. I am prepared to help create a crisis. It is sometimes rather useful.
He suggested there might be a dislodging of priorities from family law to social welfare and employment appeals. Is it a generalised philosophy that family law is to be given priority as a matter of ideology rather than employment and social welfare? Those two areas are also very much at the cutting edge. If people do not have jobs and incomes and are denied access to social welfare payments to which they may be legitimately entitled or if people may be entitled to compensation for losing their jobs, these are very matter of fact areas and are part of the real world of which Senator O'Sullivan spoke.
I am advised that the figure of 4,115 for social welfare appeals is subject to a further refinement. This sort of research information would be very useful. Only 40 per cent of cases go to a hearing. Some 60 per cent of them are settled by an appeals officer. The Minister may be frightening the House a little more than is necessary and the crisis may be of slightly smaller proportions because we are only dealing with 40 per cent of that large number of 4,115 people. I feel more strongly all the time that this is an important issue of principle and that we should force it to a conclusion.
I wish to comment briefly on what Senators Lee and Norris said about legal representation at the Employment Appeals Tribunal. A case is being made for legal representation at the tribunal but the tribunal itself wants to move away from this situation back to its foundation when there was no legal representation.
The tribunal is very conscious, when people are not legally represented, that the full facts must emerge and that they are listened to in a specific way. The perception on the part of people will be that if one side has legal representation, it will be better if they are legally represented so that their case will be better heard, whether or not this is the actual situation. I wish to defend the tribunal on the basis that it is very conscious that, when people who have been dismissed are represented by trade union officials or by themselves, the full facts should be brought out and should be listened to in a different way from the way one would listen to a lawyer presenting a case. The majority of those on the tribunal, that is two of its three members, are not lawyers.
I am now more convinced of the need to push this forward, even taking account of all the points made. Senator Norris has made many of the points I would have wished to make and he made them very eloquently, although the fact that he is living in the real world gives me cause to pause to think about whether I wish to take up residence there. I hope Senator O'Sullivan does not think I am being unfair by coming back to her invoking of the real world and practicality. There is a real world of people who cannot get what they perceive as equal access to justice and, even taking account of Senator Neville's point, when justice is done it must be seen to be done. The other real world to which Senator O'Sullivan referred is the world of Government finances. Of course there are financial constraints on expenditure. Anybody who has managed anything knows that. However, that is at least as much a subjective as an objective matter. One decides what the constraints are on the basis of one's policy and ideological priorities. Government governs in terms of its commitment to its priorities. If this Government does not have legal aid sufficiently high on its list of priorities, well and good. However, it should say that as distinct from saying that the real world obliges it to restrict expenditure to whatever the current level is. It should say likewise in terms of practicalities.
Sadly, I sense a certain defeatism in precisely those quarters from which I would have expected an argument for trying to get it right in principle in the first instance — if it does not come from that quarter, God knows where it will come from — as distinct from saying that there are bound to be financial constraints and if and when these are relaxed maybe something can be done. I hope that is not unfairly putting the psyche of the representation. I agree with Senator Norris that the real world is partly what policy makers want the real world to be. That is why I will support a vote on this amendment.
I am not arguing the principle in relation to the Employment Appeals Tribunal. I accept the points that were made. I do not have direct experience of that area. However, my real world argument relates to the social welfare aspects of the amendment. That would be extremely costly. My experience is——
It is more important.
It will not be if nobody uses it.
Senator O'Sullivan, without interruption.
People who make social welfare appeals probably would qualify under the financial criteria. Social welfare appeals are not legalistic in the same way as appeals to the Employment Appeals Tribunal. There is no legal representation for people at such appeals. That has been my experience.
These are two different bodies. I accept the argument regarding the Employment Appeals Tribunal — many people have legal representation there. However, that is not the case in social welfare cases and I would not like them to develop in the same way as the Employment Appeals Tribunal cases.
It only permits representation. It does not force such representation.
I thank Senators for their contributions. They were well intentioned and I accept them in the spirit in which they were made. Senator Norris said that he is prepared to precipitate a crisis. Far from criticising him for saying that, I envy his being in a position to do so. It is a luxury.
The legal aid scheme has been in existence since 1981. Since then it has been the responsibility of a number of Governments of all combinations and hues. The Labour Party has participated in some of those Governments, as have Fine Gael and the Progressive Democrat Party. The Fianna Fáil Party has probably been in power for most of that time. It ill behoves Members to home in, as it were, on a failure to implement a major extension of the service which could have been implemented at any time since 1981 by any of the Ministers for Justice who had responsibility for it. Far from doing that, those Governments left the legal aid service languishing. It languished with little improvement for many years until responsibility for it fell to me. I ask Senators to consider that and to look at the sea change that has taken place in the legal aid service in a short period of only two years.
When I took responsibility for the legal aid service its annual funding was £2.9 million. In the past two years I have secured an increase of funding to £6.2 million. That is an appreciable amount of money and it translates into a vastly increased service for people. The number of law centres when I took over responsibility stood at 16. Some counties did not have a law centre. The number at present is 25 — an appreciable increase — and funding has been provided so that by the end of this year the number will have gone up to 30 law centres. That is no mean feat. The number of staff who deliver the Legal Aid Board's service increased during the period of my incumbency from 99 to its present total of 204 — no small increase in service. The expansionary process will continue. Funding has been provided to extend the service. Five or six new centres will be opened this year with a consequent expansion of the availability of service.
Despite that massive expansion over a short period — compared to how little happened during the previous 10 years — there is still no spare capacity in the legal aid service. None of the 204 staff is sitting around with no work to do. On the contrary, there is still a backlog of work. It is easy for the Seanad to say it will increase the range of work the staff can do. That will not increase by one iota the availability of resources or people. If it gives with one hand it will simply take away with the other. Critical work is being done by the 204 staff at present and I want them to get on with it. I want the expansion which I initiated in 1993 to continue in a measured and extensive manner consonant with the availability of budgetary resources.
Criticisms are made by all sides of the House that we are a tax and spend Government and so forth. However, I take no notice of that. I go to the Minister for Finance and, within the budgetary constraints that apply each year, I seek to secure the necessary extensions for the legal aid service. I have had no small measure of success in that regard, even if I say so myself. The present and previous Ministers for Finance have been helpful to me to the maximum possible extent within the budgetary restraints.
The legal aid service is doing well. It is expanding and will continue to expand. I need no encouragement from anybody to expand it — it is something I want to do. It is a major priority with me and the Government and it will continue as such. I ask Senators to accept the position and to take those factors into account on these amendments.
- Bohan, Eddie.
- Daly, Brendan.
- Dardis, John.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Honan, Cathy.
- Kelleher, Billy.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- Lee, Joe.
- McGennis, Marian.
- Mooney, Paschal.
- Mulcahy, Michael.
- Mullooly, Brian.
- Norris, David.
- O'Brien, Francis.
- O'Kennedy, Michael.
- O'Toole, Joe.
- Ormonde, Ann.
- Quinn, Feargal.
- Wright, G.V.
- Belton, Louis J.
- Burke, Paddy.
- Cosgrave, Liam.
- Cotter, Bill.
- Cregan, Denis (Dino).
- Enright, Thomas W.
- Farrelly, John V.
- Howard, Michael.
- Kelly, Mary.
- McDonagh, Jarlath.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- O'Sullivan, Jan.
- Ross, Shane P.N.
- Sherlock, Joe.
- Taylor-Quinn, Madeleine.
- Townsend, Jim.
- Wall, Jack.
Amendments Nos. 37, 38, 39 and 40 are alternatives and all may be discussed together.
I move amendment No. 37:
In page 17, lines 21 to 42, to delete subsection (2) and substitute the following:
"(2) (a) Subject to section 29 and the other provisions of this section and to regulations (if any) made under section 37, the Board shall grant a legal aid certificate under this section to a person if, in the opinion of the Board, that person (hereinafter referred to as 'the applicant') satisfies the criteria in respect of financial eligibility specified in section 29.
(b) In considering an application for legal aid the Board shall take into account the following matters—
(i) whether the applicant has as a matter of law reasonable grounds for instituting, defending, or, as the case may be, being a party to, the proceedings the subject matter of the application,
(ii) whether the applicant is reasonably likely to be successful in the proceedings, assuming that the facts put forward by him or her in relation to the proceedings are proved before the court or tribunal concerned, and
(iii) whether the proceedings the subject matter of the application are the most satisfactory means (having regard to all the circumstances of the case, including the probable cost to the applicant) by which the result sought by the applicant or a more satisfactory one, may be achieved.
(c) Nothing in subsection (2) shall prevent the Board from granting a legal aid certificate where, having regard to all the circumstances of the case, it would be reasonable to grant it.".
This amendment argues that the board should have overall discretion to decide whether an applicant should get free legal aid. The only mandatory requirement would be that they would satisfy the financial criteria, and the other factors outlined in this section would just have to be taken into account by the board. As the Bill stands, the board is required to be satisfied that all of the matters specified in paragraphs (a) to (e) of section 2 apply before it can grant a certificate. I ask that these matters be only taken into account and that the board would have a general discretion to grant a certificate.
It is important because in certain cases — for example, in relation to a debt — the person involved would not have reasonable grounds or be likely to succeed in the proceedings. However, it could determine the amount of money that the person would have to pay in the end or how they would pay it, which would be most important.
Discretion should be given to the board that while it should have to take these matters into account, they are not mandatory. The law centres and free legal advice centres have a great deal of experience of this and they feel that this discretion would enable them to help people who need legal aid in this area but that the restrictions outlined in this Bill would prevent them from giving assistance. I urge the Minister to accept the amendment.
The wording of my amendment No. 38 may seem like the wording of the Minister's section, but it is not, for the same reasons given by Senator Honan. The wording in the Bill directs the board that it must take a certain course of action. My amendment and that of Senator Honan make a slight change in the wording to allow the board the discretion to decide that if a case has merits, leaving aside the other criteria, it can grant a free legal aid certificate. This would allow the board some flexibility, whereas the existing wording directs that the board must make a decision in the negative, as it would have to refuse to grant a certificate for legal aid under the terms of this section.
We are asking the Minister to soften the wording of the section to allow the board flexibility in the granting of certificates. The criteria for the granting of a legal aid certificate is the crucial factor in the entire Bill. Unless the board is given discretion, it is really directed by this legislation to refuse certificates. We ask the Minister to allow the board some discretion.
Subsection (2) of section 28 provides that the board will grant a certificate to an applicant for legal aid if the applicant satisfies the financial eligibility criteria provided for under section 29 of the Bill, and where it is of the opinion that (1) the applicant has reasonable grounds in law for instituting or defending the proceedings; (2) the applicant is reasonably likely to be successful in the proceedings; (3) the anticipated proceedings are the most appropriate means of attaining the end result desired by the applicant; and (4) it is reasonable in all the circumstances to grant a certificate. Those criteria are, in substance, the criteria which have existed in the scheme of legal aid to date.
The effect of the amendments proposed by the Senators would be that, notwithstanding the fact that an applicant is not considered to have reasonable grounds in law for instituting or defending the proceedings, where it is not considered that the person is reasonably likely to be successful in the proceedings and where it is considered that the anticipated proceedings are not the most appropriate means of attaining the desired result for the applicant, the Legal Aid Board would still be empowered to grant legal aid where in all the circumstances of the case it is reasonable to grant it. The question that arises is whether the Exchequer should be asked to fund cases where the Legal Aid Board considers it reasonable, having regard to all circumstances of the case, to grant legal aid to an applicant who does not have a case in law, who has no possibility of succeeding in the action and where the proceedings are not the most appropriate means for the applicant to pursue.
In the absence of any clear cut examples on cases which would merit exemption from that criterion, the answer would have to be no. Therefore, I regret that I have to oppose these amendments.
- Belton, Louis J.
- Burke, Paddy.
- Cashin, Bill.
- Cosgrave, Liam.
- Cotter, Bill.
- Cregan, Denis (Dino).
- Enright, Thomas W.
- Farrelly, John V.
- Howard, Michael.
- Kelly, Mary.
- McDonagh, Jarlath.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Norris, David.
- O'Sullivan, Jan.
- Quinn, Feargal.
- Ross, Shane P.N.
- Taylor-Quinn, Madeleine.
- Townsend, Jim.
- Wall, Jack.
- Wilson, Gordon.
- Bohan, Eddie.
- Cassidy, Donie.
- Daly, Brendan.
- Dardis, John.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Honan, Cathy.
- Kelleher, Billy.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- Lee, Joe.
- McGennis, Marian.
- Mooney, Paschal.
- Mulcahy, Michael.
- Mullooly, Brian.
- O'Brien, Francis.
- O'Kennedy, Michael.
- Ormonde, Ann.
- Wright, G.V.
I move amendment No. 41:
In page 18, subsection (4), lines 9 to 16, to delete paragraphs (b) and (c).
This important amendment relates to a point we discussed with the Minister on Second Stage, when we were considering the thrust of the Bill in terms of putting civil legal aid on a statutory basis. Certain types of cases are excluded under this section and the amendment seeks to ensure that they will come within the scope of the Bill.
Reference was made earlier to the equality case taken by women social welfare recipients. Under the section as it stands, that type of case would not be granted civil legal aid. There are many areas in which test cases need to be taken. When such cases have been taken in the past, by applicants who paid their own legal costs, it has been proven that the cases had merit and that those involved had rights and entitlements. This makes the argument stronger that such cases, if they satisfy the criteria, should automatically qualify for legal aid. Injustices will be compounded if people must pay their own costs to take a case which has merit.
The Minister is aware that the solicitors who acted for the women in the recent social welfare equality case did so on a no foal no fee basis. The deal was that they would receive 10 per cent or more of the arrears to which the women were entitled if the case succeeded. This aspect should not be encouraged because it is the only access to the courts for people who cannot afford solicitors' fees to take cases which they feel have merit and can succeed.
Reference was repeatedly made this morning to expensive solicitors. However, it appears there is no such thing as a reasonably priced solicitor. As a result, people who want access to the courts and who are entitled to justice cannot afford legal fees. It is a long time since I had occasion to be in the courts, but at that time it cost £250 to consult a junior barrister. I am sure it is much more expensive now. The costs are absolutely prohibitive for those who cannot afford to finance cases themselves.
I am surprised test cases are excluded since the Government has taken the huge step of allocating money to pay arrears which are long overdue. This injustice, to which all parties contributed at some stage, will soon be corrected. The Minister is committed to righting such wrongs and on that basis I do not understand why this exclusion is included in the Bill. I hope the Minister will take this important matter on board. Whatever about the last amendment, this amendment is crucial and I ask the Minister to accept it.
I support the amendment. I was surprised to note that test cases were to be explicitly excluded. Almost by definition, the most deprived groups in society are likely to need and benefit most from test cases. For many of the same reasons put forward by Senator McGennis, I urge the Minister to accept the amendment.
I also support the amendment. The taking of test cases or group actions would be a very efficient way to operate. However, there is no definition as such of what a group action involves. For example, would the case involving students and the Society for the Protection of the Unborn Child have been considered a group case?
Members of the travelling community could be refused legal aid on the grounds that if a case was taken on their behalf, it could be used as a test case for other members of the travelling community. If a case was taken on behalf of a homeless person, it could be stated that it would benefit other homeless people. It would, therefore, be a test case or group action and would not come within the scope of the free civil legal aid system.
It seems to me that test cases and group actions would be a very efficient way to take cases, particularly for those who do not have access to resources. I also understood it was essential that these types of cases would be covered.
I have some difficulty with the amendment as I understand why the Government wishes to exclude such cases. If one person who is entitled to free civil legal aid could take a case, but many others who are not entitled to such aid would benefit from it, it is easy to understand why the Government wishes to exclude this area. The use of free civil legal aid would, in effect, be abused by people who would find one person to take a case with free legal aid and benefit from it themselves. Perhaps the Minister could clarify the position.
I support the amendment. I believe in test cases because I benefited from one. Such cases are a very good thing. I am aware of a certain view which excludes class actions. This is a hurdle which must be sometimes overcome, even in terms of the European Court of Human Rights. There is a type of objection in the legal mind to taking class actions. From a philosophical point of view, I am all in favour of class actions and test cases. We should be making strong arguments on this matter, but I am not sure it would be wise or tactically judicious to keep putting the boot into the Government by voting on all the amendments. However, I support the principle of the amendment.
Senator Quinn made a very fair point, but I understand the amendment would not oblige the board to take test cases. Such matters would be at its discretion. The amendment simply seeks the deletion of the clause which excludes the board from taking such cases. I am not a supporter of the profligate expenditure of public money where private interest can afford it. However, as I understand the amendment, it would give the board discretion and it would not be prohibited from considering such matters.
The amendment does not seek to achieve the point raised by Senator Quinn. It is not intended to place an onus on the Legal Aid Board to take test cases. However, the section specifically prevents the board considering such cases. The amendment seeks to ensure that the board can consider such matters on their merits before making a decision on whether to grant a free legal aid certificate. As it stands, the board cannot do this. It is precluded from even considering a test case, regardless of whether it has merit. The amendment does not state that the board must automatically take on all test cases referred to it. However, the board should at least have the discretion and right to consider whether a case has merit. The last amendment, which was defeated, enshrines in the criteria that the case must have merit. We are not saying that, regardless of merit, a case must be taken on. The other criteria in the last section would still stand.
When I was considering earlier whether to allow discussion on this amendment until 1 o'clock, I had not anticipated that it would go on longer than that. It was, however, agreed this morning that we would have a sos between 1 o'clock and 2 o'clock.
Subparagraphs (b) and (c) of section 28 (4) preclude the Legal Aid Board from granting a legal aid certificate if: first, the applicant is acting on behalf of a group of persons having the same interest in the proceedings; or second, the board is of the opinion the intended proceedings constitute a test case. Since the establishment of the Legal Aid Board 15 years ago, the scheme of civil legal aid and advice has retained those exclusions. Policy under successive Governments has remained unchanged.
The effect of Senator McGennis' amendment would be that all test cases, group, class and representative actions could be legally aided. As already stated, policy is to direct available resources to providing legal aid and advice to those most in need. If the Legal Aid Board was to devote resources to such cases, which can be both costly and time consuming, it would in my view result in an unacceptable diversion of funds from individual cases, the majority of which are family law cases.
In circumstances where Exchequer funding of legal aid is limited — as it must be, having regard to other demands — it is necessary to ensure legal aid at least reaches out to those most in need and resources are concentrated on those cases, even if that means the exclusion of others. In light of the arguments advanced by Senators I am prepared to examine the matter further between now and Report Stage and ask the parliamentary draftsman to prepare an amendment to enable the Minister by order not to apply paragraphs (b) and (c), but I must oppose the amendments as they stand at present.
I thank the Minister for acknowledging the merit in the amendment. I am, however, concerned about the suggestion to provide for this facility by order or regulation. It may not be possible to do so, which returns us to this morning's argument about tribunal cases, etc. I fully admit resources have been a problem. As the Minister said, the previous scheme did not allow for these cases either, but we should make the legislation better than what went before it. I am reluctant not to press the amendment.
The Minister said scarce resources should be directed at more urgent cases, but I am not sure anyone could decide that test cases such as those mentioned before lunch — the social welfare case and the housing case mentioned by Senator Honan — were less important than certain family law cases. The Minister said if my amendment was accepted it could lead to test cases being legally aided, but that is all I am trying to achieve. I am not insisting these cases would have priority over other cases or that they must be considered, but that they could be considered. Under paragraphs (b) and (c) they are completely excluded.
If this amendment is not pressed, the Minister said he might bring this about by way of regulation; but the Minister for Finance may not be forthcoming with the necessary resources. I feel strongly about these amendments. No. 41 in particular, and want their objective achieved.
I see the Minister's point, because a great deal of expense can be incurred in taking such cases. If a large group of people is anxious to have a test case there is a temptation to identify someone in the group who would qualify for free civil legal aid as a test case. The Minister's approach is reasonable in that he will look at the position, and he tends towards an amendment to introduce this by order at a later stage. The Seanad should await what he will present to us and then decide. The Minister must discuss the matter with his draftspersons to ensure any amendment achieves his objective, but it may well achieve the objective of the Senators also.
The Minister has responded in a reasonably reasonable manner, if I can put it like that. I take Senator Neville's point and I do not want to press this amendment to a vote. Having said that, I am not convinced by the arguments advanced thus far so I will make some points the Minister may consider if he introduces an amendment at a later stage.
This amendment only requires that the board not be precluded from considering these matters. Are we to have confidence in its judgment or not? By precluding it from even considering these cases we put a question mark over its capacity to decide on the basis of all the evidence before it and the priorities which ought to apply in this area. The Minister appoints the board, has power to sack people and need not re-appoint people or fill vacancies if he does not wish to do so. The board is highly unlikely to be indifferent to Government policy or priorities. It would almost be a vote of no confidence in the capacity of the board to behave responsibly.
If there was a test case in which a substantial number of the potential beneficiaries would be deprived people who could not afford to go to law — even if others were to benefit — and if the board had permission to look at such a case, it would be well within its rights to consider it carefully. No board would dream of funding a test case which patently would use up public funds on behalf of well-heeled private interests. It would discredit itself if it was to do so. One must repose some confidence in the capacity of a board appointed by the Minister to arrive at responsible decisions. I hope he will reconsider the position carefully. A provision "by order" may never emerge.
I support Senator McGennis and Senator Lee. The Minister made an amendment to section 30 to insert "in the opinion of the Board" and said that the board's opinion had worked well up to now. I take it the board is responsible and will not waste its time and limited resources taking cases it feels may be best funded by private individuals.
If Mrs. Airey came to the Civil Legal Aid Board tomorrow with the case that led to the introduction of free legal aid, would her case be considered a test case and would she be refused aid on that basis? We are looking after groups that would not have access to legal aid unless it was allowed to them under this section. We are not saying all these cases should be taken up but we are allowing the board discretion. We must have faith in its discretion and I do not think it would use its discretion foolishly.
Is the amendment being pressed?
No. I will await Report Stage. I will not, however, be happy if the Minister proposes to do this by order. These paragraphs should be deleted.
I move amendment No. 42:
In page 18, subsection (5), lines 21 to 30, to delete paragraph (b).
I am concerned about subsection (5) (b) and I imagine it is probably unconstitutional. The paragraph states that the board "... shall make an assessment of the financial contribution towards that applicant's costs in the proceedings that might reasonably be expected to be made by the said other persons... ". How can the board decide on and then seek a contribution on the basis of a possible liability of others who might benefit from a case? I do not understand how that can be done. It would mean that if I took a case, for example, and Senator Honan or Senator Lee were to benefit from it——
I might aid the Senator by saying that I am prepared to accept the amendment.
Amendments Nos. 46 and 49 are related to amendment No. 43 and all may be discussed together.
I move amendment No. 43:
In page 18, lines 42 to 46, to delete subsection (6) (c).
I proposed this amendment to try to understand the reasoning behind the section. As I understand the legal aid scheme, it is to assist people who would not be able to afford the market price of legal services. There is an implication here that on some occasions the market price may be lower than that which the board would require from the applicant. Perhaps I am completely misunderstanding that and, if so, I am sure the Minister will point it out. The amendment is primarily for clarification. If my understanding was correct, I would press the amendment.
My understanding of the section is that if I can get legal assistance privately for less cost than from the Legal Aid Board, then I should do so. That does not make sense to me because I would imagine the Civil Legal Aid Board of its nature would have to be less costly. My amendment No. 46 proposes that the contribution should not exceed what it might cost to privately engage a solicitor. The section suggests that if I can get the service cheaper elsewhere I should do so, but I do not understand that. I cannot understand how the contribution for legal aid would be more than the cost of a private solicitor.
Section 28 (6) (c) provides that the board will have the option of refusing to grant a legal aid certificate where it considers the cost to the applicant of taking proceedings without receiving legal aid would be less than the contribution payable by him or her under section 29 of the Bill if legal aid was granted.
Senator Lee proposed the deletion of this subsection, while Senator Honan's amendment to section 29 proposes that no applicant for legal aid be required to pay a contribution which would exceed the cost which he or she would be required to pay if they were to obtain the services of a private practitioner. If a case was to arise under this subsection, it would be rare. No case, so far as is known, has arisen under a similar provision of the scheme over the 15 years of the board's operations. However, the point at issue is important.
If a person can get a cheaper service from lawyers in private practice than from the board, they should be directed to go to that cheaper source. In circumstances where the law centres have waiting lists, it makes sense where legal aid or advice can be obtained more cheaply elsewhere that the time and resources of the law centre should not be taken up with those cases. It would be unfair on an applicant to grant legal aid in circumstances where the board was aware that the likely contribution which the applicant would have to make under section 29 would be greater than what he or she would have to pay to a lawyer in private practice.
I oppose Senator Lee's amendment to delete subsection (6) (c) and Senator Honan's amendment, as I consider the retention of subsection (6) (c) makes her amendment unnecessary.
I am a little more puzzled. If the services can be satisfactorily provided in the market at a cheaper price than the Legal Aid Board is charging, the board should be looking at its own pricing structure. I do not know how it determines its pricing structure for its services, but if it is above market price that would seem to subvert the purpose of the scheme. Perhaps there are cheap lawyers out there somewhere and if they are decent lawyers the Legal Aid Board should be trying to hire them.
We could not find them this morning.
I cannot understand how the Legal Aid Board could charge more than would be charged in the marketplace. People should not be obliged to pay more. The Legal Aid Board should not be charging them that amount in the first place.
The Minister said such a case has never arisen to date and that makes this subsection more puzzling. I do not see how a private lawyer could charge less than the contribution the Legal Aid Board would require. One has to have limited resources to get legal aid. The Minister introduced amendments to section 26 to change "charge" to "contribution". How could a contribution ever exceed a lawyer's bill in such circumstances? I cannot understand it. My amendment is probably what should be in the Bill. I cannot see how a service provided by private legal practice could ever be cheaper than that provided by the board's solicitors or the legal aid centres.
This situation would not arise very often, but theoretically it could arise. Market forces apply to solicitors at the moment and different solicitors have different charges for different reasons. They may use loss-leaders or fixed fees and may be geared to handle a particular kind of case quite cheaply to attract business or clients. Theoretically, it could happen that the contribution required of a client of the Legal Aid Board could be more than the fee a large firm geared to handle that kind of speciality is prepared to charge for it. All we are saying is if that situation arises, the person should avail of that opportunity. It is logical and commonsense. I do not envisage it being a common occurrence, but theoretically it could arise.
This is in many respects an academic issue. However, we are not the ones who brought it up. I am not persuaded by the argument about loss-leaders. Loss-leaders to attract whom? These people will not have two pennies between them for much of their lives but will somehow be sufficiently affluent to collectively provide capacity profits for a law firm. I have great difficulty envisaging this situation arising. If services were, on any remotely regular basis, available more cheaply in the market than comparable services offered by the board, there would be something wrong with the board's pricing policy.
I can imagine it happening in a once off situation, but if on a regular basis the board was charging more for a service than private firms found it profitable to charge over time, the board should be looking at its own pricing policy. If one allows for the loss-leader argument and supposes that for a period a private firm found it profitable to charge less than the board and such practice persisted, the board's pricing structure would require careful consideration. This seems to leave the door open in all circumstances. The board could continue its charges even if there is a lower price structure in the market. I do not want to linger over the issue for. too long because the more complex it becomes, the more implications arise.
If I qualify for legal aid, how does the board or I know that the service is available cheaper from somebody in private practice? Does this by implication mean that it will operate like the local authority schemes where a person must get three refusals from a building society before the council will give them a loan? That is a fairly significant possibility. How does the board know a service is available cheaper elsewhere unless they send the applicant to find out? If that is what will happen, we will have to press the amendment all the more.
If a person has a very low income, they get the service free from the Legal Aid Board, so the situation depends on their income. If someone is at the top end of the income scale, they would be obliged to make the maximum contribution, and this is where the situation might arise.
Let us say for the sake of argument that there was a form of proceedings in the family law court for maintenance or custody and the contribution for a person whose income is at the top end of scale is £200 — I am taking these figures out of the air. A firm of solicitors or young solicitors who practise frequently in the family law court could send word to a law centre that they were available to undertake such applications for £100 if the centre wanted to send clients to them. They may be charging such a cheap fee because it suits them at that stage of the development of their practice. I agree it is not a very likely scenario, but theoretically it could arise. Market forces now apply to the legal profession which were not there years ago. Solicitors advertise their wares and price advertising may well be introduced in the fullness of time. It is a bargain situation and competition exists which on occasion can be quite fierce. All we are saying is if that situation arises, it would be appropriate for the law centre to send the client to the solicitor who is doing the job for less money.
I do not want to linger on this issue and I am learning from the Minister as he speaks. My basic point is not that there is a problem if this happens on a once off basis but that if alternative cheaper pricing becomes structured in the market, the Legal Aid Board itself should have to reconsider its pricing policy. If not, its whole purpose seems to be subverted.
Is it possible, in light of what the Minister has said, to bring back a revised phraseology on Report Stage which takes cognisance of the points made? It may be difficult, but there are drafting skills in the Minister's Department. It would be incongruous if the Legal Aid Board was charging a standard price for a service which was cheaper in a functioning market. I do not know the criteria by which the Legal Aid Board determines its prices, but if they are above what the market can charge, the Legal Aid Board itself should be required to consider its prices. I hope it would be possible to find some phraseology to cope with these scenarios, however improbable the Minister says they may be, as they may emerge if American style law was practised here, which I would deplore.
I have not been slow during this Committee Stage debate to say that I will go back and look at wording or re-examine situations if I see a need for it. The wording in this instance makes a specific and definite point and I think it is quite clear. I hope Senators will understand it is there to provide for a rare situation that could arise.
There is nothing wrong with the charging standards of the Legal Aid Board. The overwhelming bulk of the work they do is for no charge at all or for very little. Their rates or fees are probably about average. In special circumstances, a law centre might become aware that the same service could be obtained from an independent private firm. Having regard to the fact that law centres are under such pressure and will obviously remain so in the distant future, it seems perfectly sensible and logical that the special or unusual job would be done by the private firm if it is cheaper than the contribution to the law centre. It is a rare situation and the section as drafted covers it adequately. I do not believe reconsideration is required in this case and I do not want to mislead the House by saying otherwise.
I see a great deal of sense in it. I hope that there will be a more competitive market in the future and this situation may arise. The Minister has explained it very well. It would therefore be incorrect to remove the freedom to refer the client to someone else if the situation arose. I support the Minister's views.
I take the points made by the Minister, but the legal aid scheme is a large one and a considerable number of solicitors are employed. What is it doing in the market if it cannot provide a particular service, which presumably is one of the main services it offers, at a competitive market price? Is it offering a pricing policy which others are able to compete with but with which it cannot compete? If so, why not? That is the problem; it is not a once-off type of thing. If it goes on for any length of time, does the Legal Aid Board simply withdraw from that service and say it can be done more cheaply by somebody else? I agree with Senator Quinn that if it can be done regularly more cheaply by somebody else, then of course one should go to them. That raises a question about the Legal Aid Board. Perhaps I have misunderstood this.
As I see it, those on the margins of eligibility for free legal aid will be concerned about this. It will not be an issue for those who are at the lower level of income because they will get full legal aid anyway. Those on higher levels of income who are eligible for free legal aid could in the circumstances outlined by the Minister obtain it at a lower rate if somebody was opening a practice. However, this has not happened for 15 years and it may happen for another 15 years. It only concerns a small group who are just within the limits of eligibility because of their income.
Is there a scale of contributions? Is a person liable to pay £20 or £30, depending on their disposable income, or is it discretionary?
It is to scale.
I am not too happy, but on the assumption that it is to a large extent academic, I will not press the amendment.
Section 28 (7) gives effect to a provision in section 3 of the existing scheme of civil legal aid and advice which requires the board to grant a legal aid certificate to an applicant where the State is by virtue of an international instrument under an obligation to provide civil legal aid to the applicant. The applicant before being granted such a certificate must comply with such requirements, if any, as are specified in the international instrument.
International instruments to which the scheme applies in this context at present include the European Union Convention on Jurisdictional Enforcement of Judgments in Civil and Commercial Matters, the Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children.
The effect of the amendment proposed is to make clear that where applications for return of children have been accepted by the central authority in my Department under the conventions on child abduction, legal aid will be available for all matters arising under the Child Abduction and Enforcement of Custody Orders Act, 1991, which gives the force of law to those conventions. The amendment also deals with the new situation which will arise when the State ratifies two international conventions aimed at making it easier for persons living in the territory of one of the parties to those conventions to recover maintenance from a person living in the territory of another party. These are the Rome and UN Conventions on Recovery of Maintenance, which the Maintenance Act, 1994, enables the State to ratify.
Arrangements to have those conventions ratified are at an advanced stage by the Department of Foreign Affairs in consultation with my Department, which has responsibility under the 1994 Act. The amendment makes clear that where applications have been accepted by the central authority in my Department under the two conventions on maintenance, legal aid will be available for all matters arising under the 1994 Act. While the conventions put certain obligations on the State in respect of legal aid, obligations arise for all contracting states. The overall effect under the conventions is one of reciprocal arrangements to enable persons to gain access to justice in the civil matters covered by the conventions.
Amendment No. 45 has already been discussed with amendment No. 12. Is it being pressed? As the amendment was taken with amendment No. 12, it cannot be discussed. I am advised that amendment No. 12 was withdrawn.
On a point of order, I remember this amendment and I asked the Minister if it was appropriate for it to be taken with amendment No. 12.
Is amendment No. 45 being moved?
Yes. I move amendment No. 45:
In page 19, subsection (10) (a), line 24, to delete subparagraph (i).
As there seems to be confusion, the House may now decide to discuss amendment No. 45. Is that agreed? Agreed.
It is obvious that the Minister and his advisers considered this. The Constitution guarantees every citizen the right to their good name and as far as possible the State should vindicate that right. It is curious to explicitly exclude it in this legislation. It is so obvious that I am sure it has been considered. I do not want to launch into a philippic on the matter, which can be discussed rationally. If there are convincing arguments to the contrary, then so be it.
I support the amendment. It is inconsistent with the Constitution if free legal aid is not available in defamation cases. It was one of the Law Reform Commission's recommendations that free legal aid would be available in defamation cases. On that basis, I understood the Minister would have been willing to include it.
I support the amendment. I thought I tabled a similar amendment, but I omitted to do so. Legal aid should be provided in such cases. It is inconsistent with natural justice that only those who can afford to have their good named cleared can do so. I support the amendment, which seeks to delete defamation as one of the excluded categories.
Senator Honan raised the question as to why defamation cases are excluded under the Bill as it stands. Such cases are excluded under the scheme in operation at present. That has been the position since the scheme started. I should explain that the exclusions under section 28 (10) may be disapplied by ministerial order under subsection (11) of the same section. The intention is to examine in depth those exclusions which also exist under the scheme as it stands and to consider what orders should be made under subsection (11). I welcome submissions in this area which can be taken into account in my examination of the matter.
Is the Minister saying he can make an order that these cases will be dealt with?
I could make an order to exclude the exclusion; in other words, to allow defamation cases to be taken in the same way as the other categories. They will all be considered and examined. All factors, including the resources available, waiting lists and dalliance in this area must be taken into account and kept under review from time to time. I do not regard defamation cases as a high priority. I regard many of the other matters we discussed as higher priorities than defamation cases. During this debate many Senators mentioned compensation culture. This area could be defined as such. Defamation cases are easily brought and one could visualise a situation where the law centres, which are already hard worked, could be overworked with defamation cases. One could not become involved in this area without careful consideration.
I accept those points, but defamation is a different category from the others mentioned here because of the constitutional situation. Is the Minister saying that the constitutional commitment to defend a citizen's good name and the State's commitment, as far as is practicable, to vindicate it, depends exclusively on the financial capacity to sustain it and that the State has no obligation beyond the rhetoric of the Constitution to do or contemplate doing something about it? I am puzzled about the way we are going. On the assumption that the Legal Aid Board exercises its judgment on all matters before it and if it is as responsible as we assume it will be, it will have a proper order of priorities. To exclude matters explicitly seems to close the doors unnecessarily. I am concerned with the constitutional dimension of this category compared with the others.
I agree with Senator Lee that this is important because of its constitutional implications. I presume the board would only take cases which it believes have a reasonable chance of success. Would costs not be awarded to the board in that case? I do not believe it would decide willy-nilly to accept every case. I am sure it would be judicious in deciding which cases to take and that they must have a reasonable chance of success. The cost would be repaid. It would not be at a loss because it would not use its resources.
I am at a loss to understand the point about the Constitution. The Constitution protects all types of rights. Property rights are referred to and protected in the Constitution. We are excluding disputes concerning rights over and interests in land. It is a constitutional right to protect a person's property and to protect a person's money as in debt collection.
The Legal Aid Board has a major job to do within its existing remit. It is easy to come into the House and to say that we should extend it to do different things and to include tribunals, defamation cases, etc. All those things could be adopted, but it will not change the budget of the Legal Aid Board and its resources. It will not open an additional law centre or take on an additional solicitor, clerical assistant or administrator. One can add to the list all one likes, but the Legal Aid Board and each law centre works within its resources and capacity.
I and the Senators know the board's priorities. It is a fair and arguable point that the maximum possible resources should be obtained for the Legal Aid Board, that the maximum number of people should be employed by it, including specialists and professionals, and that the maximum number of law centres should be opened throughout the country to serve those needs. I have been working on that basis with a reasonable measure of success, in comparison with what was done before. I ask Senators to accept that situation and to recognise it for what it is.
Increasing the range of activities of the law centres will not help anyone unless additional funding is provided. However, the Estimates for 1995 have long since been fixed and approved by Dáil Éireann and they will not change. This line of argument would be more understandable if there was spare capacity in the resources of the Legal Aid Board. I could understand if people argued that there was spare capacity, that solicitors had nothing to do and that they needed more business and work in tribunals and defamation cases.
Notwithstanding the greatly increased resources and the more than doubling of staff, they are still doing important work under pressure. Adding further duties and extending the range at this point is less than helpful. I appeal to Senators to adopt a realistic approach and to accept that we are extending and expanding this service at a huge rate. This is putting enormous burdens on head office staff who administer this service. It is not only administered at local level, but also at central level. They are performing wonders in containing and coping with the new resources I have given them. It is one thing to give them the resources, but it is another to use them to the best advantage and to get them involved in the administrative work in head office. That is being put in place. The number of people helped by this service is increasing hand over fist. I appeal to Senators to accept this situation.
No one has anything but admiration for the Minister. We all accept that under his regime the provision of services has increased enormously and we congratulate him for that. I understand the practical point he is making in that existing services, although expanded, could be swamped if there was a rush of defamation cases. I doubt if that would happen.
Senator Lee made a good point when he quoted the Constitution because if the right to the vindication of a good name is enshrined in the Constitution, it is enshrined for everyone. Regardless of that, I pick and choose among the rights of the Constitution and I do not believe that the right to take an action for defamation is as significant on a practical level as the right to secure fair treatment in terms of employment or social welfare. These are basic bread and butter issues. This point is, perhaps, more theoretical than practical.
I make no apologies for having pushed vigorously for the inclusion of civil legal aid in the tribunal. That was appropriate as a matter of principle. Although I agree with the arguments from this side, the case is not as strong on practical grounds because, as I said, the other issues are bread and butter ones. Defamation is not quite as critical for those people. I say this despite the fact that I am a litigious person and am given to this aspect of the compensation culture. I believe there are occasions when one's good name is worth a sizeable sum of money. I hope to demonstrate this in the coming months.
I recognise and fully accept what the Minister is saying, which is that we must establish priorities and work within a given budget. He indicated to Senator Honan that by regulation the areas that are excluded could be reduced and that this could be included at a further date. We are saying, in effect, that those who cannot afford to pay for legal services will only have access to the law for defined areas. I know this is because there are financial constraints. It means those of us who can afford to pay can take cases in relation to any matters. Those who have better cases may not able to take them to court because they do not have the same access to the law.
If the Minister accepted the amendment, the criteria in section 28 for obtaining legal aid would cover the kind of things about which he is concerned. The board has to establish that there is a reasonable case, that it is likely to be won and that the cost of taking it would not exceed the amount one would be likely to be awarded. These criteria should be a protection from silly or wasteful claims or claims which will not have any substantial results.
Unless we do this now, the kind of civil legal aid service we provide to those who cannot afford to employ solicitors will be very narrow and confined to necessary and priority areas. Other matters under which cases can be taken will not be open to certain people. The Minister should insert a provision whereby, by order, the board may grant legal aid at a later stage for the designated matters listed in section 28 (10) (a). The board's own criteria under the section will ensure that nonsensical claims will not be taken on.
Amendment No. 46 has already been discussed with amendment No. 43.
May I raise a point of order in relation to amendment No. 46? I think there is a grammatical mistake in it. It refers to the "cost of the applicant". I think this should read "cost to the applicant".
It is a typographical rather than a grammatical error.
Amendments Nos. 48, 50 and 51 are alternatives to amendment No. 47 and they all may be discussed together.
I move amendment No. 47:
In page 20, between lines 45 and 46, to insert the following new subsection:
"(c) the Minister shall, as a minimum, adjust the means test limit annually in accordance with upward changes in the Consumer Price Index. Social Welfare recipients shall be deemed to qualify under the means test.".
This is introducing what I hope is not a contentious issue. It is simply attempting to ensure that the means test limit shall be adjusted annually upwards at least in line with inflation, if there is inflation. I would have hoped that this would have been policy.
The amendments are very similar. They are virtually identical. The second sentences in both amendment Nos. 48 and 49 are quite identical. The former states that "Social Welfare recipients shall be deemed to qualify under the means test." The latter states that "Social welfare recipients shall be deemed to satisfy the means test." I assume this is inarguable. People on social welfare must be assumed not to have sufficient means to engage legal assistance for themselves. The matter seems to me to be fairly straightforward.
I have no difficulty in supporting Senator's Lee's amendment and I hope either his or mine will be successful. The only difference between them is that the first sentence of mine is slightly vaguer and allows the Minister slightly greater flexibility. It provides that "the Minister shall review the means test annually by application of the Consumer Price Index." It does not impose a minimum, although that may be very socially desirable. I commend it so that the Minister will have a range of choices in selecting an amendment to which he will no doubt agree.
I would like to speak on amendment Nos. 50 and 51. The means test should be reviewed annually and should be linked to the consumer price index. Social welfare recipients should automatically qualify. It would be very tedious and unnecessary work for the board to process each applicant who was relying on social welfare. There should be automatic qualification for such people.
I wish to speak on my amendment. The case has already been made for it. The Minister may shorten the debate by telling us this is exactly what happens. I would be surprised if social welfare recipients do not automatically qualify and that every year the eligibility limit is not adjusted to take account of the consumer price index and inflation.
I support the principle of regular reviews of income limits and the concept that social welfare recipients should automatically qualify. I do not know what the Minister's response will be but the principle is good.
I am not convinced that the Bill needs to contain a provision which would impose on the Minister an obligation to review the income eligibility criteria on an annual basis in line with the consumer price index. Reviews are dealt with on a regular basis where necessary. A provision which compels the Minister to adjust the criteria could be cumbersome. If the consumer price index were to fall, the Minister would be compelled, whether or not he or she was disposed to do so, to make a corresponding adjustment in the limits. That arrangement could be unwieldy and unnecessarily inflexible.
Senator Lee, in his amendment, recognised the difficulties which can arise as a result of linking to the consumer price index and, in an effort to get over the problem, proposes that the adjustment of limits should be linked only to upward movements of the consumer price index. However, such an approach could result in a double benefit where over a period of fluctuation in the consumer price index the overall increase in the income eligibility limits would be at a significantly higher level than the net increase which the consumer price index reflects. The best arrangement is that provided for in the Bill, under which the Minister has authority delegated to him or her to make regulations to deal with the matter.
While the income eligibility limits have previously been increased in line with the consumer price index, this has not been done annually. I believe the limits should be reviewed regularly as a matter of policy and I have recently completed reviewing the current limits and details of that review will be announced in the coming weeks.
I am not convinced of the proposal in Senator Norris' amendment that social welfare recipients should automatically be deemed to satisfy the means test. Under the formulation suggested by Senator Norris individuals would have to be provided with legal aid where, for example, they were temporarily on disability benefit while on a two or three week absence from a well paid job due to a minor illness. Similarly, an individual might have been recently made redundant from a well paid job and be about to take up an almost identical position with another firm. Under the Senator's amendment the simple fact that the individual in question would be in receipt of unemployment benefit at the time would, however, enable him or her to obtain legal aid. I appreciate the Senator's good intentions but the plain fact is that his amendment would not be practical and could result in anomalies and injustices.
There is a good deal of merit in what the Minister says on both scores. With regard to the amendment concerning social welfare, I hope it would be possible to find a phraseology which would take cognizance of that type of exceptional case. In terms of the normalcy of behaviour it should be possible to find a phraseology which accepts the principle stated here, even if it is necessary to allow some flexibility in deviating from it in practice in cases such as those mentioned by the Minister.
With regard to the adjustment in accordance with the CPI, the Minister is quite right — I am gratified to note the detection of the implication of the word "upward" in my amendment — about possible complexities that could arise. The Minister used the word "regularly". Is that included in the Bill? If that is the intention it would appear to be desirable to include it in the Bill within the Minister's phraseology. If there were a Thatcherite regime in this country the potential for restricting and damaging the intention behind this legislation would not be limited by the phraseology in the Bill at present. One hopes that will not happen, but as far as possible one tries to anticipate the worst as well as the best. Phraseology can be devised which would sustain the spirit behind the amendments if there is a disposition to go in that direction.
It is always instructive to listen to the Minister. I always know I am being put down when he describes my amendments as "well intentioned". I can reassure the Minister that they are. The Minister has wide legal experience so one listens with great respect to what he says. I am not chauvinistic about the wording. However, I wonder if this area cannot be tightened up a little along the lines indicated by Senator Lee and towards which the Minister appeared to be sympathetic.
I wish to quote back to the Minister — although this is not the appropriate target — what has been said to me by Ministers so many times: "hard cases make bad law". The Minister quoted some hard cases. I have a feeling, although I do not have the Minister's experience, that the hypothetical cases he instanced are quite extreme. How many cases would there be of somebody in an extremely well paid job who happened to hit a snag and was on social welfare for two or three weeks and who, while waiting to get onto the gravy train once more, would apply for legal aid in that period of time? Surely some form of words could be found to meet this situation and to ensure that there would not be such abuse — I agree that it would constitute abuse — of the system. I cannot imagine that happening often. I am not sure that it is realistic. After all, as I and the Minister know, the formulation of cases and getting them heard in court is a lengthy business. I doubt that there are many business executives waiting to drop into the social welfare queue so that they can start taking actions left, right and centre and present the State with the bill. Although it might happen theoretically, I do not regard it as a serious threat or drain on the Exchequer.
I am not fighting for the inclusion of this form of words. However, the principle is that people on social welfare need this service. Constantly subjecting them to means testing appears to be a waste of the time of personnel, who must check them out, perhaps interview them, review their papers, seek documentation and so forth. That appears to be a greater waste of resources than if one or two people in the peculiar situation sketched out by the Minister, with great dramatic invention, should benefit. It would be worth it because, as I take great pleasure in reiterating, hard cases make bad law.
I agree with Senator Norris. Amendment No. 50 provides that it should "be reviewed by the Minister annually having regard to the Consumer Price Index,". Amendment No. 51 deals with social welfare recipients. I could not imagine a case being taken on and dealt with by the Legal Aid Board in the space of a few weeks before the person moves on to their well paid job. I doubt that there would be many such cases. For the benefit of the large number of people on social welfare who use the Legal Aid Board this amendment would involve much less tedious and unnecessary work, even from the social welfare recipient's point of view. Many people feel that they are constantly queuing for services and going through unnecessary procedures which ultimately prove they are eligible for aid even though that could have been decided at the beginning. These people must overcome all sorts of hurdles in order to get their rights. We should be trying to remove the hurdles in their way.
I see the point being made by the Minister. The problem is that our amendments are badly worded. I presume I could make the case that because I receive child benefit, which is a social welfare payment, under the wording of this amendment I might also qualify for legal aid. However, could the Minister confirm that if I was in receipt of one of the basic incomes provided by the State for social welfare recipients I would automatically qualify for civil legal aid as defined at present?
Senator Norris continually makes the case that this Minister might not always be the Minister with responsibility for this. We know this Minister will operate this scheme in an absolutely correct manner. However, I agree with the concern voiced by Senator Norris. If there were a different regime or Minister in power at some time in the future he or she could decide to distort the figures and show that the civil legal aid system is working fantastically well, that all the waiting lists have been dealt with and that the system could be run for about £2 million per year. That could be done by keeping the level of means at which one is deemed to be eligible out of people's reach so that they never qualify for civil legal aid.
We are trying to ensure that there is an annual review of the amount prescribed by the Minister. The Minister says that can be done by regulation. However, we want the Bill to state that every year the person will be allowed to earn an extra £10 or £20. It is amazing that increases are always implemented quite easily. Every local authority reviews its rents — one sends in one's statement of income and one's rent subsequently increases. However, when we are talking about somebody qualifying for a service it is more difficult to put such obvious structures in place.
The Minister knows what we are trying to achieve. I accept that my amendment would not achieve that objective because we might disadvantage people if the consumer price Index were to go down. I accept that simply stating "social welfare recipients" would make the board's job impossible. I ask the Minister to suggest a formula to achieve the objective of the amendments.
If there is a disposition to accept the spirit of the amendments, it must be possible to find a phraseology. Senator Honan's amendment states "an applicant whose sole income is derived from social welfare benefits". That could be modified with the inclusion of a time scale, for example, "whose sole income over a particular period has been derived from social welfare benefits". If one wishes to exclude the kind of hard case which the Minister took as an example, there is then no difficulty in finding a phraseology which allows one to cope with most of the hard case types the Minister has spoken of. I hope it is not beyond the resources of the Minister and his staff to find an appropriate phraseology in the light of the spirit of the discussion.
I have no difficulty in withdrawing the amendment in my name in favour of amendment No. 51, because it appears more satisfactory in its wording, and I am sure the Minister could agree with a provision which approximates closely to it. The operation of the section in governed, in any case, by section 28 (2) (e) which states, "having regard to all the circumstances of the case (including the probable cost to the Board, measured against the likely benefit to the applicant) it is reasonable to grant it." A test of reasonability is, therefore, involved and the board has discretion. In view of this, I am confident that it would exercise its judgment in the area which covers one of the extreme cases instanced by the Minister.
I accept that the Minister has a very fine record and that he has instituted a review of the means test and so on. However, I understand that there have only been two such reviews in the last 15 years, and this does not constitute what I take to mean by the word "regularly". It emphasises the point that previous Ministers with responsibilities in this area may not have taken so broad and sympathetic a view of the matter as the Minister.
Whatever the review may have been over the past 15 years, and I do not have the exact figures to hand, there will be an up-to-date review within a matter of weeks. We are considering what is or what ought to be the general principle enshrined in the Bill that will govern the administration of the free legal aid system. The principle enshrined in the Bill is simple and appropriate and it is not linked to any artificial context such as social welfare or the CPI and so on. It is that people get legal aid when they are of limited means. This means that, in general, all people on social welfare get legal aid — although this is not the principle, which is as I have stated it. It is, therefore, difficult to see how anybody could find a fault with this test.
It is important that the upper limits be reviewed on a regular basis. One can argue as to the meaning of ‘regular basis', and possibly reviews have not been undertaken as promptly in the past as they should have been. However, this could be due to a number of reasons, for example, having regard to the way the service was run over many years, with long waiting lists. The effect of a review of the upper limit would make those waiting lists even longer, because more people would then become eligible.
It all boils down to the same question once again — what are the resources each year for the Legal Aid Board? This is the only thing that matters, because once the income of the board is fixed, as it has been fixed at £6.2 million for 1995, it can be juggled around in whatever manner one chooses — for example by undertaking more defamation cases and fewer family law cases, more tribunal cases and fewer judicial separations or domestic violence cases. One operates within the constraint of the budgeted figure for the board granted each year by Dáil Éireann.
Increasing the limits will increase the waiting lists, therefore the approach to take is to secure the maximum possible grant from the Minister for Finance each year to enable the generality of the service to expand and then to decide how best that is to be spent and establish the priorities. A possible extension of the upper limits absorbs some of the grant. Alternatively, one may extend the range of the services available — more people and so on.
However, to juggle around within the same constraint is a circular exercise. It was largely the fact that I was enabled to get the substantially increased funding for the Legal Aid Board last year and this year that enabled me to get down the waiting, lists to manageable proportions, and this in turn has enabled me to increase the upper eligibility limits. This is the way in which the system is operating and I wish to see it continue to do so. It is my intention to continue the expansion of the system, keep the waiting lists down, increase the eligibilities and in the fullness of time I am hopeful that it will be possible to expand in many of the ways which the Senators and myself wish to see happen.
I have listened with great respect to the Minister and I will not go into the philosophical basis of where I may differ from him. However, of course, it is people in need or poor people who will benefit, but what criteria are established in respect of this? Unless social welfare recipients are incorporated as being a category who, by definition, will satisfy this requirement, it then becomes a decision for the Minister and Government at any given time. The Minister is rightly thinking about possible expansion — and we would support him on this — but let us suppose a Minster with a different approach is thinking of possible restriction, believing that the Legal Aid Board is grossly over-financed and over-supported, and that many of the recipients should get on their bikes, or whatever is the phraseology of the Norman Tebbits of this world.
Parties which press for cutbacks in public expenditure frequently do this.
Indeed, and this allows us the one chance we have had for some time to batten down the hatches as far as possible. In the fullness of time, depending on moneys, finances, philosophies and so on, by all means let people add to the scheme, but if they wish to limit, restrict and exclude, let us make it more difficult for them to do so. Hopefully, this is the philosophy behind the Bill.
The Minister referred to the unexceptionable principle that resources should be directed at persons of limited means. Perhaps I am naive, but I would have always assumed that recipients of social welfare were, almost by definition, persons of limited means. However, this may not always be the case. I should not change sides in midstream, but I am allowed this degree of academic speculation. I am aware of a situation, for example, in the north inner city where there are a number of drug barons who are also in receipt of social welfare, and it would go against my grain if I thought that these maggots were able, not only to corrupt the life of the community in which I live, but also to apply for free legal aid to defend themselves when they were, appropriately, nabbed. This points up a deficiency in the administration of social welfare. My representative in the area, Deputy Gregory, has made a strong case, which has never been taken up, for co-ordination between the Department of Social Welfare, the Department of Justice, the Garda and the Inland Revenue so that people in this situation can be apprehended by a co-ordination of these agencies of the State. I accept absolutely that it is a question of limited means. One assumes that persons in receipt of social welfare payments are by definition a category of persons——
That would only apply to means related aspects of social welfare. Theoretically, a person could be receiving social welfare on a non-means related basis, on a benefit basis, who has an independent income.
I understand that. I thank the Minister for pointing it out to me again. Perhaps some formulation of words could be arrived at which would get around that. Would it not be possible to automatically exempt from the application of a second means test those persons who have already been means tested in order to receive certain social welfare payments? Or is that the practical case on the ground already? It would seem wasteful if they had to suffer another means test. The test which could be applied is that persons who are receiving social welfare payments for which a means test has already been applied should be automatically deemed eligible. We are not being pettifogging about wording but looking to the principle of directing most efficiently the resources of the State to those who are most vulnerable.
I do not want to hold this debate up unduly, as I think that this has been discussed at a reasonable length. I suppose that it would be possible to devise and incorporate in the Bill a scheme tying the administration of the system into the social welfare system, having additions, exclusions, provisions and all the rest of it. Theoretically, that could be done. It might end up as quite a complex scheme and simplicity is always much more desirable in these matters.
The basic principle is enshrined, that legal aid goes to people of limited means, and that has been administered fairly well, as far as I know. There is an appeal procedure in place in the Legal Aid Board for anybody who feels that they have been badly done by. By and large, people receiving social welfare do qualify for legal aid. That is a broad generality, as there may be some who do not; I am not sure. I do not think that any major investigation takes place by the Revenue Commissioners either. I imagine that anybody who is on means tested social welfare would qualify very quickly for legal aid. I do not think it is a problem and it would be somewhat unreasonable to start devising a new system linked into the social welfare system. It would not add anything to it and would make it even more complex.
The Minister said earlier that he has £6.5 million for his scheme this year and that, in effect, dictates how much work can be done, which I accept. However, should it not be the other way around? If a figure is put on limited means it may lead to longer waiting lists if more people are eligible. I felt that the Minister was saying he would like to do all of these things but that it would not happen on an allocation of £6.5 million. The starting point should be to define the means limit and ensure that it is annually updated and increased to reflect the reality.
Hundreds of people were on the waiting list before the Minister demanded additional resources. Those were people on limited means. The Minister was able to go to the Minister for Finance and say that thousands of people qualified under the means test of limited income for a service which could not be provided because there was not enough money in the system. I am worried that the Minister is saying that the amount of money available will determine the level of service which will be provided. I would see the starting point as defining the means limit, ensuring that is increased every year and requesting the necessary finance to provide that service and not the other way around.
At the end of the day, Government in this country has always worked on the basis that for each particular service which the State provides, estimates are prepared and negotiations take place for the maximum amount of money which is obtainable in the particular budgetary circumstances which apply. It is public knowledge that the figure available for the Legal Aid Board for 1995 is £6.2 million. The Legal Aid Board is constrained to work within that budget. That budget has enabled it to make major expansions in the legal aid service.
How that additional money is expended is a matter for determination in accordance with the priorities which are determined. One can apply that additional money in different ways. One has to use one's best judgment. The Legal Aid Board is a key factor in determining that and the Minister also has a role. Having regard to the increased funds which were available this year, I am now happily in a position to review the upper income accessibility limits. As I said, I have completed that examination and that will be announced within a matter of weeks.
Each year the board's needs are considered, based on its own particular budgetary position at that time, and if increased funding becomes available judgments have to be made on the best course of action. Would it be better to open another centre or to change the eligibility limits? What is the state of the waiting lists? What is the particular need? One has to look at the situation at each particular time. When waiting lists were inordinately long in previous years, it would have made little sense to start increasing the eligibility limits. Its only effect would have been to make the lists even longer. Now, happily, we are in a position to deal with it. which we are doing. I ask Senators to accept it on that basis. I cannot put this matter any further.
This has had a good airing and the Minister has given a number of good reasons for the position which he is adopting. We can agree to disagree on some of the inferences, perhaps. I hope that the Minister can find a way to take this point on board. Senator Norris is correct that the Minister's review is the second in 15 years.
It will be the third, there have been two already.
It will be the fourth.
That is roughly once every four years. Is there a way of including a provision in this legislation to ensure that "regularly" means regularly, as distinct from once every four years or thereabouts, depending, presumably, on the disposition of the individual Minister? I think it is fair to say that because of this Minister's personal disposition, he would assume that "regularly" would mean regularly. However, that is not what it has meant over the last 15 years. It would be very desirable, given the amendments and the tone of discussion here, if it was possible to find a phraseology which would take that general desire of the House on board.
We are getting somewhat circular here. "Regularly" means regularly, depending on the particular circumstances which pertain at a time. I cannot say that it would be once every six months, year, two years or whatever; it would depend on the circumstances. However, we should all bear in mind that at the stroke of a pen one can increase the eligibility limits all one likes — every six months, every three months. However, that would not increase the resources for that year for the Legal Aid Board by one penny or bring in another solicitor or administrator. Therefore, the level of work being done remains constant.
As I said, the money is used to the best advantage, depending on the particular circumstances which apply at a particular time. I am happily in a position at this juncture in time to do a major update. I hope to be able to do that again next year; but I cannot say that, as it depends on the budgetary position next year. Of course, I may not be the Minister next year.
We have had a long discussion on this amendment.
I accept everything the Minister has said except circumstances of time, because these are not objectives; they are considered the priorities of the Government at the time. That depends on the dispositions of Government. That is why one would hope to have in the legislation something which would oblige Governments to try to give this a higher priority than many previous Governments have been inclined to give and not to make it so dependent on the goodwill of an individual Minister. It is not a question of three or six months, even our amendments are at best annual adjustments, and I hope that is not unrealistic.
I appreciate that sometimes legal language has a different value to that of language used in ordinary parlance, but the amendment says that "The Minister shall review the means test annually by application of the Consumer Price Index." That does not seem to me to dictate to the Minister that they shall increase by the amount of increase in the consumer price index. If there was some kind of parlous financial situation obtaining in the country, there is no absolute legal obligation on the Minister to continue an increase if it was absolutely impossible.
The words chosen are "review" and "by application". Previous Ministers have shown themselves capable of all kinds of manoeuvres which would entail the application of a test, finally found to be inappropriate or that it did not work and did not abide by what ordinary people thought should have been the outcome. I do not think the Minister is quite as tied by the use of the word "review" as he seems to assume.
This is a drafting amendment.
Amendments Nos. 54 and 57 are alternatives to amendment No. 53 and all may be discussed together.
I move amendment No. 53:
In page 22, subsection (1), line 19, after "subsection (3)” to add:
"subject to the proviso that a Law Centre cannot provide legal aid or advice to more than one party to a dispute".
This is a simple amendment and I hope the Minister will be able to accept at least the spirit of it. The idea governing this amendment is that it would be inappropriate to have two parties to a dispute — the Minister has already indicated that family law is a primary area of concern for the Legal Aid Board — receiving advice from the same source. I accept, of course, that perhaps different legal practitioners might be appointed — I presume this would have to happen — but there still could be a perception of conflict of interest, especially in situations of a family in dispute, and it is simply in order to obviate this difficulty that the amendment was put down.
I support this amendment. The basis for this amendment is that no one who goes to the legal aid board should get a service which in private practice would be regarded as unethical. No two parties to a dispute would go to the same firm of solicitors in private practice.
I see the merits in Senator Norris' statement. There could be a perception that there would not be this impartiality, which is essential. We accepted that people living in certain areas may have to travel long distances to get advice and this provision was put in to ensure they would no longer have to go to a separate law centre. However, by having a panel of independent solicitors available, the choice would be there for the person. They would have reasonable access within reasonable distance of their homes to legal advice and both parties to a family law dispute would not have to attend the same centre.
The Minister is well aware of cases of people, mainly women, seeking barring orders. As has been said, the bulk of these cases dealt with are family law cases and a large number of those, from some of the statistical information obtained by the Joint Committee on Women's Rights, are to do with barring orders, violence etc. Under any circumstances, no one would expect both parties to have to go to the same law centre — they would not be seeing the same solicitor — to seek representation in any kind of family violence case.
The argument against this point is that one is causing hardship for people but the change which the Minister introduced, allowing for a panel of private solicitors to be made available to act on behalf of the board, would get over that problem. It is a reasonable amendment. A woman would feel intimidated if she had to go to a law centre and saw her partner, who was responsible for domestic violence against her, in the same centre. The law centres will not be put in the awkward position of being obliged to see both parties. In those cases, the other partner who is entitled to legal aid should be sent to one of the panel of solicitors.
The main reasons for my amendment have been well covered by the previous speakers and I will not detain the Seanad any further.
I have a difficulty with these amendments, if I understand them correctly. We briefly referred to the discussion that took place on the previous group of amendments. The whole concept behind this legislation is to give access to the legal system to those who cannot afford it. It was said, especially in the context of family law cases, that these services should not and cannot be provided to both sides. Senator McGennis spoke about the discomfort the victim would feel if they were to see the aggressor in the same building. However, what if the aggressor goes there first to avail of the services? Senator McGennis' amendment would deny the victim the opportunity of getting access to the legal system that is underlying the concept of this legislation.
A judgment and a discretion has to rest somewhere. If this amendment succeeds and it is decided that the board can only provide legal assistance to one side of a dispute, then there has to be the means of deciding which side of the dispute should get that assistance. It should not be on a first come, first served basis because there is always the danger that the victim might arrive after the aggressor. That is the danger that underlies the Senator's amendment and I would be worried about it.
First, one cannot assess in advance of a legal determination who the victim is or whether there is a victim; that is prejudging a situation. There is a human situation here. It is not just a question of a possible perceived conflict of interest. It is also the human situation that parties to a dispute might, for example, have to sit together in a waiting room — that is not beyond the bounds of possibility. If there was sufficient aggravation between them, particularly in family disputes, that could be an unpleasant situation, not only for one party but for both and the other inhabitants of the waiting room.
There are two other amendments that are clearly related to this matter and help to explain it. One of them is amendment No. 55, which substitutes the word "shall" for the word "may". That provision would then read "a panel of solicitors and a panel of barristers shall be established by the Legal Aid Board". A complainant could go to a barrister or a solicitor who was on a list, but not necessarily physically in the law centre. The other matter is the question of the deletion of section 30 (6), which simply says that a law centre can provide legal aid to the two parties. The three sections are related. If all three were accepted the result would be consistent. I do not want to labour the point because time is going on and it would be useful if we were able to complete the Bill this afternoon.
It was no part of my intention or of my amendment that the later party to arrive should not be able to avail of the service. The amendment was simply to ensure that a single centre would not discharge responsibilities for both. There was no intention whatever to discriminate against one party to a possible dispute.
The whole concept that underlies this Bill is that of providing access to the legal system for those who cannot otherwise afford it. Amendment No. 53 adds the proviso that a law centre cannot provide legal aid or advice to more than one party to a dispute. On the basis that financially both are equally disadvantaged, both sides to the dispute should qualify.
Each party would qualify but each solicitor would be drawn from a separate panel. They would not come from the law centre directly.
Each party would get a solicitor from the panel.
The amendment mentions a law centre; the amendment depends on the location of law centres. This is a typical situation where city people assume that everything is just down the road. There is an Ireland outside Dublin——
The Senator is not serious.
——and outside the cities. Yes, I am serious.
What is it called? Is it called the real world?
It is important that that aspect be recognised in our deliberations here.
My reference to the panel of solicitors was to get over the perception that because I am Dublin born and based, I did not realise the difficulties of people who live in the country; of course I do. The Minister set up the panel system because nobody expects that every small town and village in Ireland would have its own law centre; not this year. Perhaps each village will have its own law centre next year or the year after if the Minister continues at his present rate of progress. I would put my money on every small town having at least a pub and a solicitor.
We do not have a pub.
If a town does not have a pub and a solicitor, it certainly would not have a law centre; but in that case a person who qualifies for free legal aid would hopefully be directed to a solicitor from the panel. I accept what Senator Howard is saying, it is very easy to identify a victim, the victim is the one with the bruises. I understand what Senator Howard is saying. In a situation where the woman — it is usually a woman — goes to a law centre, if she arrives after the other party to the dispute she is slightly disadvantaged, but she certainly would be able to avail of free legal aid. She would be sent to the town solicitor or whoever is on the panel and he or she would deal with her. Getting women to come forward——
She stands a better chance without the Senator's amendment.
She does not, because both parties would have to be dealt with at the same law centre. Those who work with women in this situation, in particular in cases of violence, will say that to be faced with a perpetrator would mean in many cases that a woman will do nothing. It is difficult to make the move in the first instance, to go and seek a barring order or whatever remedy is sought. If a woman has to face the person who is responsible for beating the lard out of her she will not come back. Intimidation can be physical or verbal. I would not like to sit in a room with somebody who will later go home and continue the same behaviour.
I agree with Senator McGennis. None of us would want what Senator Howard has said would happen to happen. That is why amendment No. 55, which deals with the panel of solicitors, was put down. I agree with Senator McGennis. Many women would be terrified to go along to a law centre if they believed that there was any possibility of meeting the perpetrator of the crime against them there and it is not fair to expect them to do so. This amendment would avoid that difficulty and would also take care of the problem of distance from a law centre in the country. I do not live in Dublin and there are two law centres within quite a reasonable distance of the town I live in. There are solicitors in all small towns and a panel of solicitors would be ideal. If the woman was not afraid to face up to meeting the person she is complaining against I would not be concerned, but for many people the psychological effect of coming face to face with the perpetrator of such a crime would be great. I would agree with Senator Howard if the effect of the amendment were to be as he says, but in introducing amendment No. 55 we are ensuring that what the Senator is afraid of will not happen.
As one who lives in Senator Norris's real world, as one who was reared outside Dublin, I believe Senator Howard's interpretation of amendment No. 53 is the correct one. The panel, if it is established, can obviate that danger. The law centre does not have to be a physical entity. A law centre is where a solicitor acting on behalf of a law centre practices, if one wants to define it as such. We will shortly have something of the order of 30 law centres. The number of centres is increasing, but even so individuals in particular places will always have long distances to travel to law centres. The panel is meant to alleviate this situation and also to obviate the danger of a victim coming face to face with her oppressor or perhaps even on occasion with his oppressor.
Section 30 deals with some of the practical considerations attaching to the provision of legal aid and advice such as where applicants should go to receive legal aid or advice and who should be available to provide such services. Section 30 (6) provides that any law centre may provide legal aid or advice to more than one party to a dispute, provided that — this is a most important consideration — each party to the dispute is represented by a separate solicitor and, where appropriate, a separate barrister.
Senator Norris's amendment would require that in all cases where both parties are legally aided they should be represented by separate law centres. It could mean that legal aid applicants in those cases may have to travel long distances to a law centre other than the law centre nearest to them. In the preparation of the Bill I have looked carefully at the provision in section 30 (6) which effectively gets around that problem. I am happy to assure Senator Norris that fears regarding possible breach of confidentiality are groundless. If there was a problem in this general area in private practice it can safely be assumed that the Law Society would have issued a directive or guidelines on the matter. They have not done so. There is no rule of law on the matter either. No particular difficulties are foreseen. The fair assumption is that the law centre as a professional agency will where necessary make arrangements to ensure that where through its solicitors it represents both parties to a dispute, representation will be on a completely separate basis and that confidentiality will be maintained in each case by the solicitors concerned.
There is a possibility under the Bill that a private solicitor who is on the panel of private solicitors held by the board may be availed of in certain circumstances. One such circumstance could be where the same law centre has to represent both parties. The circumstances under which private solicitors may be availed of is under examination at present by the board in consultation with my Department. Decisions made on the basis of that examination will be announced in due course. I am opposing the amendment on the basis that it conflicts with the best interests of legal aid applicants and the efficiency of law centres.
I thought that as the Minister finished he was in agreement with our argument that there is a basis in certain circumstances for sending a person to a panel solicitor. His officials anticipated the argument we were going to make, not the argument we made. None of us who put down this amendment suggested that there would be any danger of a breach of confidentiality. The written reply which the Minister was given when the amendments were tabled suggested that this was the thrust of our argument.
It was the Senator's best argument.
I made that argument in a half hearted way.
I thought the Minister concluded his reply by stating that there is a case for sending another party to a panel of solicitors. This is exactly our point.
That is the effect of the combined amendments.
In the circumstances the Minister should accept the amendments. He said in his reply that there is a case to be made for sending one party to a separate solicitor. This is the thrust of our argument.
There may well be a very good case for sending somebody to a panel of private practitioners in a particular town or county if such a panel is available. It easy to put down an amendment stating "there shall be set up a panel of private solicitors". However, it would take more than the efforts of a Minister to meet this requirement, rather something akin to the deity.
For there to be a panel of private solicitors, there must be solicitors who are prepared to serve on such a panel in a particular location under the terms set out by the Legal Aid Board. This may happen in some cases, but not in others. Regrettably, there are no universal panels available at present. I hope to extend this aspect and it may well come about. However, there is nothing whatsoever wrong in one law centre serving both parties to an appropriate case.
I am not impressed by the arguments made about the parties perhaps meeting in the waiting room. They meet in the courtroom, the waiting room of courtrooms and offices in different locations. We should bear one factor in mind before we exhibit a degree of overcare for a person by sending them from the town in which they live to a law centre elsewhere on the basis that they might meet the opposite party in the waiting room through bad planning of appointments. People might prefer to do this, rather than travelling 60 or 70 miles to another law centre. Personally, I think people would prefer it. It is eminently appropriate and the best use of resources, in addition to what people themselves would want, to ensure that they have the possibility of a separate solicitor, albeit in the one law centre, available in their town and immediate area to serve them. This makes good sense and good professional practice.
There is a certain difference between parties to a dispute meeting in the anteroom of a court. This is virtually inevitable, but by that stage they have made the decision to go ahead with the case. However, as Senators McGennis and Honan stated, particularly in the situation of women who are subject to marital abuse, it is at the point where they are deciding and seeking advice on whether to proceed with a case that it is important they are not subject to an intimidatory atmosphere as a result of the presence of the spouse. With the greatest respect, Minister——
Does the Senator mean in the waiting room?
It should not be beyond the bounds of the people making the appointments in the law centre to fix up the appointments accordingly if they are requested to do so. It might be somewhat overprotective to use that as a basis for sending the woman 80 miles away to another law centre.
We must listen to the Minister's points, given his experience as a solicitor. However, I must also listen, with respect, to the views of the two women who spoke on this side of the House. They appear to have contact with the practicalities on the ground from the perspective of the women involved.
I also intended to make that point. This legislation is presumably intended to cover developments in the future. However, the Minister appears to take a less than optimistic view of the potential for development. If law centres will remain 60 or 70 miles apart as a matter of course, it is a slower development of the system than one would have wished.
The Minister appears very pessimistic about the prospects of a panel. If the position would be very difficult in terms of "shall establish and maintain... ", does the situation not also become very difficult in terms of "may establish and maintain... " if there is resistance on the part of the solicitors? Given the Minister's knowledge of the situation, which I and people without a legal background cannot have, is he, in effect, stating it is improbable that a panel will emerge which could provide some type of substitution for a physical law centre and the 60 or 70 miles gap we are discussing? If this is the case, I would accept that subsection (6) is practical commonsense as matters stand and makes whatever allowance possible for the problems outlined by Senators McGennis and Honan. However, one hopes this is not the direction or the pace of development of the whole legal aid system. I hope I am wrong in thinking that a worse case scenario is almost being anticipated.
Is the Minister suggesting there has been difficulty to date in getting private law practitioners to participate in the scheme? Has there been a reluctance on the part of the legal profession to take part in the extension of the scheme established by the Minister whereby one could go to a panel solicitor? Leaving the real world aside, if one takes the largest firm of solicitors in Dublin, does the Minister believe that both I and my husband, Senator Norris, would go to it?
That is a very safe choice.
May I ask how many children we have?
They are mine anyway.
Senator McGennis, without interruption.
In all honesty, would we both go to the same firm of solicitors?
I will look after the marriage settlement.
That situation is unthinkable. It is unheard of that parties to family law cases, particularly those involving violence, both use the same firm, even if one appointment is at 12.30 p.m. and the other at 11 a.m. This is just not done. While I accept that the law centre is simply a building and the lawyers are not members of firms — I am being very careful as I do not know whether many Senators are members of firms of solicitors — it is not good practice. It would not happen in a situation involving private practitioners and it is wrong.
Given that people are queuing up to become lawyers, I would have thought that solicitors would have been delighted if they were appointed to a panel. Is the Minister suggesting this is not the case? I am not suggesting, if the law centre in one's town is dealing with one's case and that of one's husband or partner, that one should go to the next law centre. However, if a town is lucky enough to have a law centre, I would put money on the likelihood that there is a solicitor's office nearby. One would not be sending somebody 60 or 70 miles away. It is not good practice and it is completely wrong.
If you are going to make your case and the other party is on the other side of the room, but the board decides you do not have a case, you have immediately lost much ground because your partner saw you at the centre and knew you sought advice. It is not good practice and would not happen in any firms of which Senators are members.
When the civil legal aid scheme was established this was not the practice. In view of the fact that the Minister has increased the number of law centres throughout the country, more facilities are available. However, the Minister has decided to include this provision, which would be more relevant to the situation one would have expected to exist in the past when there were fewer law centres. I find it extraordinary that something is now being introduced that was not there when there were fewer law centres.
Senator McGennis sowed the seeds of doubt in my mind——
I am trying.
——when she outlined the imaginary marriage between herself and Senator Norris.
Did I ruin my case?
Senator Norris is receiving free legal aid.
Going back to my argument, I wondered who in such circumstances would be the aggressor or the victim.
I am shattered.
I do not accept that there is anything wrong with the practice of separate solicitors in a law centre representing both parties, provided both parties want that. There is nothing obligatory about this. It is being brought in and provided for as a convenience for each or both of the parties if they want to avail of that service. If one of the parties has been taken on by a law centre in the town and the other party does not want to use that particular facility, they do not have to. There is nothing to stop them going to a private practitioner panel if there is one in that area, or travelling 18 miles to the next law centre if they want to. This is provided for them as a convenience if they want it. My guess is that in 99 per cent of cases they would very much want to.
I am not over impressed by the point about sitting in the waiting room. There is nothing to stop the woman — if that is who it is — when she is in that law centre, from saying "This is a delicate situation with my husband. Would you please liaise with your colleague and make sure that when my appointment is set up, his appointment will be at a different time or on a different day." It should not be beyond the bounds of possibility for people in a law centre to organise that. In any case this is optional and if people do not want to take the risk of meeting their opposite number in a waiting room they are fully entitled to go to the next law centre if that is what they want to do.
I call on Senator Norris to move amendment No. 55. I understand that there was considerable discussion on this amendment in conjunction with amendment No. 53.
I move amendment No. 55:
In page 22, subsection (3), line 23, to delete "may" and substitute "shall".
I formally move this amendment to comply with the regulations. However, it was tied in with two other amendments and since the first crucial one has now been withdrawn I do not feel the obligation to press it very hard. I still think that it would be a good idea for the board to establish and maintain the panel. The Minister has already answered this in his reply to a previous amendment so it would be tedious to go back over these arguments again.
Is the word "may" part of the legislation because great difficulties are envisaged in actually establishing these panels due to legal resistance from solicitors to the idea, or because there is uncertainty about Government intentions? Which side is there a question mark over, or is it both sides?
It is certainly my wish to have the private practitioners involved in a supplementary way in the administration of the scheme. I think they have a role to play. Negotiations have to be done with local bar associations and the Law Society to fix rates for cases and all the rest of it. It is not quite so straightforward. The particular range of cases that they will deal with also has to be discussed and negotiated, not only with the Law Society and the private practitioners but also with the unions representing the staff in the law centres themselves who have a role to play in this. Their wishes also have to be taken into account.
It is a drafting amendment only.
I move amendment No. 58:
In page 22, after line 46, to add the following new subsections:
"(8) The Minister may by regulation establish committees representing local interests in a particular area to consult with the person responsible for the management of the local law centre, and to consider conferring additional duties on individual law centres.
(9) No member of such committee shall have access to any client's file or personal documents held at the law centre nor shall a member be entitled to any information provided to the staff of the law centre by any person who has availed of or is about to avail of the services of the law centre.".
This amendment envisages the establishment of committees representing local interests in a particular area to consult with the person responsible for the management of the law centre and to consider conferring additional duties on individual law centres. It also provides a subsidiary clause guaranteeing confidentiality. Under the scheme as operated at present there are already consultative committees provided for, so the absence of such consultative committees from the legislation could be viewed as representing a retrograde step. The value is that they involve the local community and spread information about the range and availability of services and they also allow the community that is directly involved to determine the priorities for the law centre. Viewed both from the point of view of principle and practice, the principle is good and the practice has been established. I wonder why this was not envisaged and included in the Bill since something similar to it has existed previously in practice.
The amendment proposed by Senator Norris would enable me as Minister with responsibility in relation to the Legal Aid Board to establish local committees by regulation to consult with law centres. I do not think there is any need for the amendment on the basis that law centres established under the provisions of the Bill will be free to engage in consultation with local interests. It would be a poor form of consultation between law centres and local interests if it was necessary for me as Minister to establish by regulation committees representing those local interests. My preference, and I assume that of the board, would be to see local interest groups form their own committees on their own initiative for the purpose of consultation with law centres without the need for ministerial regulations on the matter.
In addition, if law centres wish to take the initiative in such matters they should be free to do so and not have the matter forced upon them. The scheme of civil legal aid and advice as it stands enables the Legal Aid Board to appoint local committees for the purpose of consultation between law centres and local interest groups where it appears to the board that legal services may be provided more effectively in an area on the basis of such consultations.
That provision in the scheme has not, so far as I am aware, been operated by the board with any degree of formality by way of the appointment of committees as such. Instead the board has acted in an informal way with representatives of the local community as the need arises. No doubt the board will for the most part continue to operate in that way and it may in fact be the most effective way of tuning into the local community to gauge that they are reaching out to individuals in need of legal services in that community.
The 1977 Pringle Committee report recommended the establishment of what it termed "community law centres". However, I think it important that we examine this recommendation against the background of the committee's deliberations on the general question of the establishment of law centres. The committee considered several suggestions about the establishment of law centres, the number of centres which should be provided and their location. In particular it considered whether such centres should be established directly by the Legal Aid Board, by local community groups or by local authorities.
In relation to the establishment of law centres by local community groups or by local authorities, the committee recognised that such centres would be required to satisfy conditions laid down by the Legal Aid Board before they could be recognised and financed by the board. With regard to the number and location of such centres, the Pringle Committee had no advice to give on the matter. It stated that it was not in a position to say how many centres would be required or where they should be situated, and simply confined itself to the recommendation that a total of six centres be established in the main urban areas of Dublin, Cork, Limerick, Waterford, and Galway.
While the committee recognised the value of participation on the part of the local community in putting forward proposals for the establishment of law centres, it stated that it is not an approach that can be relied on completely because the communities which suffer the most serious disadvantages are likely to be those which will lack the organisation necessary to put forward realistic proposals for the establishment of centres. Consequently it recommended that the Legal Aid Board should at the outset take the initiative in establishing law centres.
Government policy since the establishment of the scheme of civil legal aid and advice has been to operate the scheme through law centres established directly by and under the control of the Legal Aid Board. The board has at present 30 full time centres and 17 part-time centres. By the end of this year it will have opened further centres on the basis of additional funding which I have secured for that purpose.
This development, which could not have taken place if local community initiative alone had been relied upon, ensures the service is brought ever closer to the communities in areas of greatest need and I am convinced the manner in which we are proceeding is the correct one. Having said that, there is nothing which precludes the Legal Aid Board from consulting with local community groups and they have done so in the past.
Section 37 of the Bill already enables me as Minister to make regulations for the establishment, location and management of law centres by the board. Section 7 enables me to issue to the board such general policy directives on legal aid and advice as is considered necessary. The combination of these provisions, would, if it was thought necessary, enable the objectives of what is sought in the amendment to be achieved. Consequently, with regret I oppose the amendment.
Is the amendment being pressed?
No, but I wish to comment. I am slightly mystified by the Minister's reluctance to accept the amendment because it does not force him to establish anything. It merely regularises and specifies the position and states that the Minister may act by regulation. There has been an established practice in this area and this amendment would have given statutory recognition to it without compelling the Minister to establish these committees.
For the reasons outlined I believe it is a good amendment. The Minister has not been convinced by my arguments and equally I am not convinced by his but I will not be tendentious and am prepared to withdraw the amendment.
If I may clarify my earlier statement, I said the Legal Aid Board has at present 30 full time law centres. That is not the case — at present it has 25 full time law centres but we expect the number to have increased to 30 by the end of the year.
Amendments Nos. 59 to 67, inclusive, are related and may be discussed together.
These amendments are necessary to ensure that when the board engages the services of a solicitor or barrister to provide legal aid or advice it will have authority to nominate a replacement for that solicitor or barrister when the services of the original solicitor or barrister have been dispensed with by the legally aided person.
I welcome these amendments, particularly amendment No. 66. I said on Second Stage that a solicitor or barrister was permitted not to proceed with a case but a person who felt he or she was not getting a satisfactory service from a lawyer did not have the same right. I presume the Minister took on board what I said.
Of course he did.
This is a drafting amendment whose purpose is to extend to panel solicitors as defined in section 30 the obligation to take all necessary steps to recover clients' costs and pay into the legal aid fund any costs so recovered.
When is it proposed to take Report Stage?
We hope to take it on 24 May, subject to agreement between the Whips.
For the information of Members, all this means is that Report Stage cannot be taken before 24 May but it does not have to be taken on that date.