I move amendment No. 6:
In page 7, line 24, after "functions", to insert "in particular, educational functions,"
Civil Legal Aid Bill, 1995: Report Stage (Resumed).
Government amendment No. 5:
In page 7, between lines 19 and 20, to insert the following:
"(2) The Board shall, to such extent and in such manner as it considers appropriate, disseminate, for the benefit of those for whom its services are made available, information in relation to those services and their availability".
Amendment agreed to.
An Leas-Chathaoirleach
You can move the amendment but you cannot speak to it.
I cannot speak to it?
An Leas-Chathaoirleach
No. It has already been dealt with.
I had a lovely reply to what the Minister said earlier on issue four.
Let us hear it.
In that case I will not press it.
Amendment, by leave, withdrawn.
Government amendment No. 7:
In page 7, line 38, to delete "The Board shall, each year," and substitute "Not later than the 30th day of September in each year, the Board shall".
On Committee Stage, Senator Lee and Senator Quinn, in particular, were of the view that the board should be required to make its annual reports available within a shorter time frame than provided for in the Bill. The Bill as it is framed at present requires the board to make its annual report within a year of the end of the year to which the report relates. In replying to the House on Committee Stage I undertook to consult with the board on the matter. As a result of those consultations I am proposing an amendment which would have the effect of requiring the board to produce its annual report within nine months. That having been said, I am confident that the board may be able to produce most of its annual reports within a shorter period, even though the compilation of reports involves a good deal of work in relation to information of a statistical nature the details of which do not come to hand for some time. I am not in a position to tie the board to a deadline of six months because the imposition of such a limit might restrict the board unduly in making a detailed and informed report.
I am reluctantly going to accept the Minister's move in the right direction. I have some difficulty with the standards being set in general both by Government and by this House by not placing much more demanding dates on all State organisations, agencies and bodies to provide information to their shareholders — I am referring to the citizens of this State — similar to the information that is insisted upon by shareholders of companies in the stock market. Such companies insist on having information much earlier that 30 September, but I accept that the Minister has moved in the right direction.
With each Bill that comes before this House, I will continue to urge the Minister concerned to consider moving those dates closer to the dates that would be accepted in the stock market. As a nation we should be setting a higher standard.
I support what Senator Quinn says about the lack of urgency with so many reports. I have already pointed out the case of the Department of Health's committee on maternal and child health whose last annual meeting was in April 1994, but here we are in June 1995 and not even a draft report has appeared yet. Senator Quinn has a strong point when he says there is far too long a delay in obtaining accounts and reports.
Like the two previous speakers, I reluctantly accept this as a move in the right direction. I moved an amendment on Committee Stage for a three month period. Nine months is giving a lot of time for something that could be done more quickly if the pressure was really on. However, this at least recognises that a year is simply too long. If there is difficulty collecting these statistics — and there obviously has been some difficulty, historically, because it is two years since the last report — then this surely is a way to begin putting pressure on those bodies which are supposed to supply them.
It is difficult for the board itself to be abreast of what is happening and to be basing policy on recent developments unless it has this information to hand much earlier than appears to be the case at present. This is a step in the right direction even it does not go quite as far as one would wish. Therefore, I will support the amendment.
I accept that the Minister has gone some way towards meeting the demands made on Committee Stage that a date should be set. It is important to put a deadline, but nine months after the end of the year is a long time to wait. The Free Legal Aid Board recently made a presentation to the Joint Committee on Women's Rights and they were able to gather information — for instance, on waiting lists at law centres — quite quickly for presentation to the committee. I cannot understand how it would take them nine months to produce the report.
Minister to reply.
Thank you. No reply is called for, I think.
Amendment agreed to.
I move amendment No. 8:
In page 14, lines 42 and 43, to delete ", in the opinion of the Board".
I discussed this amendment on Committee Stage and raised it with the Minister. I indicated that I would come back to it and I asked the Minister to look into it further. As a gesture to the way in which House should operate, the Minister might well consider accepting this amendment. The proposal is to eliminate the words "in the opinion of the Board" in section 24. At the moment, that section says that "a person shall not be granted legal aid or advice unless, in the opinion of the Board (a) a reasonably prudent person" would continue in this way.
My objection is to the insertion of "in the opinion of the Board" as a qualifier to what "a reasonably prudent person" would do. I note that in the original drafting of the Bill this section did not contain the words "in the opinion of the Board". I also note that in many other sections of the Bill — section 26, section 28(2) and (6), and section 29(6) and (7) — the words "in the opinion of the Board" are included.
In order to anticipate the argument as to why I have not suggested taking them out of those sections as well, it is precisely to make my point that they make sense in those areas where the opinion of the board is called for in order to make a decision. It is not called for and it is an obstruction in section 24. In other words, in any of the other sections it is how the board makes its decision but the question of "a reasonably prudent person" is an issue with which many people will have come to terms in court.
From the point of view of dealing with, being involved in, participating in and being a witness in cases of negligence in particular taken against teachers, I know that if there is an accident the question will be asked whether enough supervision, discipline or care was taken by the board. It always boils down to a judge deciding what a reasonably prudent person would do.
The problem with this section is that were I to challenge a decision taken by the board, as the Bill is now written, the determination of a court — in a judicial review, an appeal or however it got to court — would be whether the decision was the opinion of the board. If it was the opinion of the board that is the end of the matter, but I want the appeal to be on the basis of what a reasonably prudent person would do, and that is two steps back. It makes a significant difference in terms of how the matter is dealt with.
In the whole concept of negligence, reasonableness can be on the basis of omission or commission; in other words, omitting to do something or commission in terms of doing the wrong thing. Courts have had to turn themselves tortuously around pieces of evidence in order to determine that. In one case concerning a school yard accident, an extremely frustrated defending barrister who was trying to argue the point that the teacher was acting reasonably and that he or she could do no more, said: "I suppose, in the first place, a reasonably prudent person would not have had 39 kids."
That case illustrates that it is a court's decision to interpret what a reasonably prudent person would do. It is not a matter for the opinion of the board, a phrase which definitely creates a barrier and sets things back. There is a very good reason the words "in the opinion of the board" have been used in other parts of the Bill. Section 28(2) says that "Subject to section 29... the Board shall grant a legal aid certificate under this section to a person if, in the opinion of the Board... the applicant satisfies the criteria in respect of financial eligibility. ... the applicant has as a matter of law reasonable grounds... the applicant is reasonably likely to be successful in the proceedings ...". These are the decisions in which the board's opinion is called for in order to come to a conclusion. They are definite, practical and good reasons.
The initial drafting was correct. The Minister's addition of the words "in the opinion of the Board" on Committee Stage appeared to be a tidying up — I accept that nothing more than bringing consistency into the legislation was intended — but it does not have that effect at all. It is completely different. Section 28 states: "Notwithstanding subsection (2), the Board shall not grant a legal aid certificate if it is of the opinion that — (a) the applicant may obtain the cost of the proceedings... from.... any other source, (b) the applicant has on a previous occasion obtained legal aid or advice... (c) the cost to the applicant of engaging a solicitor... (d) such information as is reasonably required by the Board....”. I am sorry to rush through the section's provisions but I do not want to waste time. The opinion of the board is called for in each of these matters — it is the method by which the decision will be taken. I can go through the legislation in the same way.
My main point is that the determination of what a reasonably prudent person would do, if it is to be challenged, is determined by the courts. It is unacceptable and worrying that the opinion of the board would come between the definition or interpretation of what a reasonably prudent person would do. I have looked at information on what a reasonably prudent person would do and how that could be tied in with the opinion of the board. Taken out of context it appears quite funny. Herberts said that a reasonably prudent person is:
A model of all proper qualities with only those human shortcomings and weakness which the community will tolerate on the occasion. This excellent but odious character stands like a monument in our courts of justice vainly appealing to his fellow citizens to order their lives after his own example.
It is a quite significant legal concept. It is difficult enough for a judge in court to interpret what this odious character, the reasonably prudent person, would do because he has been the bane of our lives. I am glad to be sexist on this occasion because women have not been tainted with this one for the moment
We are not prudent people.
There is no doubt that this is a significant issue. The Minister made the case on Committee Stage that this was a drafting matter and that it did not change the meaning of the section. If he still holds that opinion, despite what I have said, would he concede that if it makes no difference there is nothing lost in the fairness of the legislation? The Minister argued on Committee Stage that somebody must determine this and why not the board rather than the court. I sense the Minister still thinks that way now.
The Senator is absolutely right.
Mind-reading goes with the job. The board should not be totally self-regulatory. Somebody must judge the judges in this case. The board takes the decision not on the basis of an opinion but on the basis of what a reasonably prudent person would do, and if somebody is going to oppose that it should be done in a legal way. I could continue to discuss this in a number of other areas.
We are creating an unnecessary barrier here, which, in the Minister's view, was only a drafting amendment when he put it forward in the first instance. It therefore does not take from the meaning of the section. However, I have discussed it with a number of people who have legal and court experience and they see it as an additional obstacle in this area. I ask the Minister to be gracious and generous about this and to accept the amendment.
I second the amendment. I support the points made by Senator O'Toole which appear to be valid in the circumstances.
I share Senator O'Toole's view.
But will the Senator vote with us?
I will and I would have voted for the Senator's amendment if it had been phrased properly. However, it was not.
Acting Chairman
Senator Norris without interruption.
The Minister was perfectly correct and I agree with his sentiments. The Senator was simply not capable of presenting the correct amendment.
It was the same wording the Senator submitted.
Acting Chairman
Senator McGennis will refrain from interrupting.
Yes, but I learn from my mistakes because I am a reasonably prudent person in the opinion of the overwhelming majority of the electorate of the Dublin University constituency.
Get Senator Mulcahy to draft the amendment.
Acting Chairman
Can we get back to business? Senators will address the Chair.
What a refreshingly, reasonably prudent idea.
Senator O'Toole is correct in suggesting that this phrasing would appear to place the opinion of the board beyond review of judicial examination regardless of whether that opinion was itself flawed or reasonable or prudent. It is unnecessary. The Senator has made a good case for removing the phrase and I hope the Minister will accept it.
This amendment would have the effect of removing from the Bill words which were agreed on Committee Stage on the basis of a Government amendment. As I explained at the time, the amendment was simply a drafting amendment which made 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.
The board, in forming its decisions, must not only take paragraphs (a) and (b) of section 24 into account but also other provisions in the Bill, such as those in section 26, which sets out the criteria for the granting of legal advice, and in section 28, which sets out the criteria for the granting of legal aid. Section 24 makes special mention of the fact that the section operates without prejudice to the other provisions of the Bill. Were the board to appear to act outside the scope of its powers under the Bill it would be open to a person to seek a judicial review of any such decision. The words "in the opinion of the Board" in section 24 are there for purposes of clarity only. Somebody must operate the criteria for granting legal aid and advice under the Bill, and that body clearly is and can only be the Legal Aid Board. It would be unrealistic to think that deletion of those words would somehow change fundamentally the role of the board in coming to decisions about the granting of legal aid and advice.
The wording of the section is that a person shall not be granted legal aid or advice unless a reasonably prudent person and so forth. A person puts in an application for legal aid and advice. The criteria are set down in the Bill. Somebody must make a decision as to whether the criteria have been met. Who will make the decision as to whether the person will be granted legal aid? Clearly, it can only be the Legal Aid Board. On what basis does it give its decision? It gives its decision on the basis that in its opinion these criteria are fulfilled or are not fulfilled. The only alternative is to have the approximately 2,500 people who are approved for legal representation go before the courts so that a judge can decide whether these criteria are met.
The Legal Aid Board makes the decisions. Nobody can suggest that anybody other than the Legal Aid Board make the decision. On what basis would it make the decision as to whether the criteria have been met? There is only one basis — their opinion that these provisions have or have not been met. That is what I meant when I said that this was a drafting amendment only. On what other basis will it come to a decision on any application except on whether it is its opinion that these criteria have been met? I am at a loss to understand the thrust of the amendment.
Those words were only inserted for the purpose of clarity. It may reassure Senator O'Toole and Senator Norris to know that, whether the amendment is there or not, any person who feels that the Legal Aid Board in deciding an application acted unreasonably or beyond the scope of the section can go to the High Court and apply for judicial review. They can do that if they believe the board strayed, acted unreasonably or that its opinion was so wrong as not to comply with the criteria in the Bill. It is perfectly proper that the words should be in the section. They are a reflection of fact. The Legal Aid Board, in considering each application, gives its opinion on whether it complies with the criteria. I regret that I cannot accept the amendment.
I confess I am not too clear about this. Am I correct in saying the opinion of the board is not the end of the matter? The Minister said that if a person believed the opinion of the board was wrong, they could ask for judicial review. The argument——
Acting Chairman
I was not aware of the rule that the Senator must speak before the Minister replies. Only Senator O'Toole, as the proposer of the amendment, can speak after the Minister has replied. It was my mistake and I apologise.
I do not believe the Minister has dealt with the arguments I put forward. I regret to say I believe he is being somewhat disingenuous in his response to my case. It is of course true that there could be still be a judicial review of the manner in which the board made their decision. The problem is that the presence of these words means that the court review will be on the basis of the opinion of the board which is now equally as important as the other issues.
I would not think so.
The Bill is there and the English language is the English language and it is not correct for the Minister to say that it is the same as everything else. The Minister said it does not change fundamentally the board's method of decision making. I agree and I am quite clear that it does not change fundamentally the way a decision is taken by the board. I am also quite clear that it is the board which takes the decision. If these words are deleted the section will read: "Without prejudice to the other provisions of this Act a person shall not be granted legal aid or advice unless ..." and go straight on to the issues. Any judicial review would be on the basis of whether in the opinion of the court a reasonably prudent person would take the action and not whether it was the opinion of the board that such is the case.
There is no doubt that where a decision has to be made by the board, the board makes that decision. The Minister himself said at an earlier stage that the principle of subsidiarity would apply and that in most cases the decisions would be taken at the lowest possible level, in the law centre. We all know that is the case and that it would only go to the board where there is a conflict or doubt, but it is still a decision of the board. The Minister has not given us any argument as to why the words "in the opinion of the Board" must remain in the section. He said it does not change fundamentally the method of decision making, and I agree with that. He said there could still be a review of the board's decision; I never said there could not be such a review. The point I am making is that a review will now take account of the opinion of the board as opposed to what a reasonably prudent person would have done.
Section 28 provides that the board may refuse to grant a legal aid certificate if it is of the opinion that certain criteria have not been met and it must take many things into consideration. That is an administrative function which one would expect the board to have. For that reason I did not propose an amendment to delete references to the opinion of the board in this and other similar sections in the legislation. The words "in the opinion of the Board" are certainly unnecessary in section 24. The Minister, in his reply, said that it does not change fundamentally the method of decision making and that a board decision could still be reviewed. I am not sure who would pay for such a judicial review or how anybody could take that up.
They could get legal aid for it.
That is another complicated question but I will let the Minister deal with it. I notice he did not deal with it in his reply.
The words "a reasonably prudent person" denote an objective test which is certainly in contrast to the subjective nature of the phrase "in the opinion of the board." There is an inherent contradiction in the use of the two phrases in the same section of the Act. This will be bad legislation if we allow it to go through. By leaving the phrase there, we weaken the legislation and leave a barrier to its operation. We allow the opinion of the board to intrude on the interpretation of what a reasonably prudent person would do.
If the Minister's opinion is that it does not change the operation of the legislation, why does he have his mind set so strongly and firmly against it? It is important to some of us and, in the words of the Minister, does not change fundamentally the method of decision making. If it is only a problem to those of us who spoke and in the view of the Minister does not change the rights of the people, we can all be winners by simply allowing the amendment to go through. I ask the Minister to accept the amendment and not to oppose it.
Acting Chairman
I am putting the question: "That the words proposed to be deleted stand."
I will not waste the time of the House——
Votáil.
Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 24
24; Níl, 24.
Tá
- Belton, Louis J.
- Burke, Paddy.
- Calnan, Michael.
- Cashin, Bill.
- Cosgrave, Liam.
- Cotter, Bill.
- Cregan, Denis (Dino).
- D'Arcy, Michael.
- Enright, Thomas W.
- Farrell, John V.
- Gallagher, Ann.
- Henry, Mary.
- McDonagh, Jarlath.
- Magner, Pat.
- Maloney, Sean.
- Manning, Maurice.
- Neville, Daniel.
- O'Sullivan, Jan.
- Quinn, Feargal.
- Reynolds, Gerry.
- Sherlock, Joe.
- Taylor-Quinn, Madeleine.
- Townsend, Jim.
- Wilson, Gordon.
Níl
- Bohan, Eddie.
- Byrne, Seán.
- 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.
- McGowan, Paddy.
- Mooney, Paschal.
- Mulcahy, Michael.
- Mullooly, Brian.
- Norris, David.
- O'Brien, Francis.
- O'Toole, Joe.
- Ormonde, Ann.
- Wright, G. V.
Tellers: Tá, Senators Cosgrave and Magner; Níl, Senators Mullooly and Fitzgerald.
Question declared carried.
An Leas-Chathaoirleach
There is an equality of votes. Therefore, pursuant to Article 15.11.2º of the Constitution, I exercise my casting vote. I vote for the question in this case. The numbers are now: Tá, 25; Níl, 24.
Amendment declared lost.
Government amendment No. 9:
In page 15, line 19, to delete "a person" and substitute "an applicant".
This is a drafting amendment. It will ensure that the section is internally consistent in that it refers to "an applicant" in line 20.
Amendment agreed to.
Government amendment No. 10:
In page 15, line 35, to delete "(1)" and substitute "(2)".
This is a drafting amendment. Its purpose is to correct a typographical error.
Amendment agreed to.
Government amendment No. 11:
In page 15, line 40, after "1990,", to insert "or of unlawful carnal knowledge under section 1 or 2 of the Criminal Law Amendment Act, 1935, or of incest under section 1 or 2 of the Punishment of Incest Act, 1908,".
The criteria for obtaining legal advice in civil matters are set out in section 26. Subsection (2) precludes the board from providing individuals with advice on criminal law matters except where the advice sought concerns the procedures by which legal aid may be obtained under the Criminal Justice Legal Aid Act, 1962. Subsection (3) provides for an exception in the case of any complainant in a prosecution for the offence of rape under common law, or under section 2 of the Criminal Law Rape Act, 1981, or of aggravated sexual assault under section 3, or of rape under section 4, of the Criminal Law Rape (Amendment) Act, 1990.
The effect of the proposed amendment would be to extend legal advice to the complainant in a prosecution for the offence 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. The amendment is cast along the lines suggested by Senator Honan on Committee Stage. I thank her for bringing this matter to my attention.
I thank the Minister for introducing this amendment. I proposed it on Committee Stage. The Minister indicated that he accepted the principle of the amendment but had to ensure that the technical drafting was correct. I am pleased to say that it was and the amendment can now be introduced. It is important that we send out a signal to victims of incest and victims of defilement cases which involve young girls under 15 years of age that we are prepared to extend free legal advice to them, as is the case for complainants under the Criminal Law (Amendment) Act, 1935 and section 1 and section 2 of the Punishment of Incest Act, 1908. I am pleased that the Minister has brought this amendment through and shown that his thinking is in line with ours on this matter. This amendment had support from all sides of the House. I am pleased it will become part of the Bill.
I also welcome the extension of legal cover in this Bill to that contained in the Acts already mentioned. Following the recent double debacle in the Office of the Attorney General, it is worth making such a statement. The impression given by that debacle was that violence against the person, particularly sexual violence, was considered less serious than any other form of crime, that delays could be tolerated and complaints not investigated. It is very important that this amendment has been included. I hope it will not be long before the complainant in all rape trials, who is a witness in these cases, has independent legal representation. I welcome what the Minister has done with the amendment.
I welcome the Minister's amendment. I pay tribute to Senator Honan who brought this issue forward. It was discussed on Committee Stage and all sides of the House agreed with the principle outlined by Senator Honan and others — a similar amendment was tabled by the Independent group. An important signal is being sent out for future legislation — perhaps existing legislation could be amended — to ensure that victims receive legal advice in court during a very delicate and trying time.
I compliment those involved in introducing this amendment. I have spoken about the particular issues of sexual offences in this House. I believe it is most important that the victim of such a crime is not left on the outside, as a mere witness in a court case, for something that has altered their lives dramatically and had a major effect on them. It is very helpful to see that being acknowledged in this legislation. I support Senator Henry's view that it is very important that independent legal standing be sought for the complainant in such cases. It is only then that the role and importance of the victim in such cases will be fully recognised.
I offer my gratitude to the Minister and my appreciation to Senator Honan, who has made a significant contribution. I wonder if this is the only Opposition amendment the Minister has accepted in full? I wish he would be more forthcoming on the others. We would then have a still better Bill.
I join with other Members in paying tribute to Senator Honan in having her amendment taken on board in the legislation. I thank the Minister for recognising its importance.
It is good to see the Minister accept an Opposition amendment in this matter. It is of enormous importance. There are far too many people who felt that they had no recourse to obtaining proper advice. This goes a long way to reassuring people throughout the country who are suffering in this manner.
Amendment agreed to.
Bill recommitted in respect of amendments Nos. 12 and 13.
Government amendment No. 12:
In page 15, line 49, after "of", to insert "any".
Amendments Nos. 12 and 13 are technical and provide for the word "any" before the word "contributions" and the substitution of "any such contribution" for "contributions so payable" in section 26 (5). These amendments take into account the possibility that a person may not have had to make any contribution in respect of legal advice provided to him or her by the board. This is because section 29 (2) allows the board to waive payment for legal advice in certain circumstances.
Amendment agreed to.
Acting Chairman
Amendment No. 13 has been discussed with amendment No. 12.
Government amendment No. 13:
In page 16, line 2, to delete "contributions so payable" and substitute "any such contribution".
Amendment agreed to.
Amendments Nos. 12 and 13 reported and agreed to.
Acting Chairman
Amendment No. 15 is an alternative to amendment No. 14 and both may be discussed together.
Government amendment No. 14:
In page 16, lines 16 to 18, to delete "the Employment Appeals Tribunal and tribunals hearing appeals under the Social Welfare (Consolidation) Act, 1993, as amended,".
On Committee Stage the House accepted the amendment by Senator Norris which had the effect of automatically extending legal aid under the Bill to cases before the Employment Appeals Tribunal and tribunals hearing social welfare appeals. Amendment No. 14 would have the effect of reversing that decision. The decision to proceed with this amendment has not been taken lightly by me or the Government. It is a decision based on careful consideration of the facts, including the fact that no responsible Government could accept a situation where a good deal of the Legal Aid Board's resources, 95 per cent of which are at present directed to and needed for family law cases, should at once be directed to legal representation before the Employment Appeals Tribunal and social welfare appeals tribunals.
It must also be remembered that the formality and expense of legal representation before tribunals is being questioned widely by members of the public, interest groups and, not least, political parties themselves. The purpose of tribunals is to provide alternative forms of dispute resolution which are cheaper, quicker, more accessible and less formal than the courts.
In so far as the Employment Appeals Tribunal is concerned, it was never the intention that it should be flooded with legal representation, making it more formal and its hearings longer and more expensive. It is the widely held view of representatives of both employers and employees that legal representation before the Employment Appeals Tribunal has increased to an extent that was never envisaged on the setting up of that tribunal. Legal representation at social welfare appeals tribunals may not have increased to the same extent as appears to be the case with the Employment Appeals Tribunal.
A major problem, however, is how legal representation could be contained if legal aid were available as a matter of course. I am in consultation with the Minister for Enterprise and Employment and the Minister for Social Welfare to see what can and should be done with the problem before extra State funding for legal aid might be channelled for tribunal cases. In our neighbouring jurisdiction legal aid is not generally available before tribunals and the matter is one which has received some attention in a recent consultation paper on which the views of people have been sought.
On Committee Stage I indicated that the Legal Aid Board provided legal representation in 2,411 cases in 1993. In the same year the Employment Appeals Tribunal heard 5,710 cases. In 910 of these cases the employee was legally represented. Had legal aid been available, it is estimated that the vast majority of those 910 cases would have been legally aided and, consequently, the board's caseload would have increased by 38 per cent. The board would not have been able to deal with that number of cases without a major disruption of its capacity to deal with family law cases.
In the same year social welfare appeals tribunals decided on 14,115 appeals. The overwhelming majority of individuals involved in those cases would have qualified for legal aid had it been available. Any need to provide legal representation in even a small proportion of that large number of cases would wipe out the capacity of the board to deal with family law cases. What we would have is a picture of chaos in which the board would be unable to deal with any case at all within a reasonable time, be it a family law case or a tribunal case. The combined effect of labour and social welfare cases on the board would increase by upwards of six times its existing workload. To cope with the work, funding for extra staff and premises would have to increase to up to £20 million or more compared with the present, albeit much increased funding of £6.2 million. It is no surprise, therefore, that successive Ministers with responsibility for legal aid and successive Governments have been unable to agree to the extension of legal aid to tribunal cases.
The priority at present is to ensure we have a nationwide legal aid service which is reasonably accessible to clients and that waiting lists can be kept to an absolute minimum. The board must, as a priority, be in a position to deal effectively with family law cases. Having said that, I should point out 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 become involved. The Bill, on the basis of my amendment, would allow legal aid to be extended to tribunals by Ministerial order at a time when it can be said that the financial and structural arrangements are in place and when it can also be said that there is public acceptance for that type of expenditure, given the other demands on legal aid and on the Exchequer generally.
My commitment to the development of legal aid is a matter of record. In 1994 the number of law centres increased from 16 to 22. In 1995 the number increased to 25 and the 1995 Estimates allow for further expansion. Since 1993 staff numbers have increased from 99 to 204. The number of solicitor staff has increased from 39 to 75. The number of support staff, that is those in administrative grades, increased from 60 to 129. Exchequer funding in 1992 was £2.7 million. This year it is £6.2 million. By any standards these are extraordinary increases and they facilitated a major development of the services of the Legal Aid Board. These developments are aimed at ensuring that individuals who are entitled to legal aid are provided with it within a reasonable time and that they do not have to travel long distances to obtain it.
A measure of the success of the extra funding of the board is indicated to a large extent by the reduction in waiting lists in law centres. In early 1993 the waiting period in half of the board's centres was between one and seven months. In these centres the waiting period is now one month or less. In the remaining half of the centres in 1993, the waiting period ranged between eight and 14 months. Now in all but one of the remaining half of the centres, the waiting period ranges between three and seven months.
Those developments have helped to address the problems of persons who in the main seek recourse to the courts for maintenance orders for themselves and their children, for barring orders to protect them from violence in the home, for child custody orders and decrees of judicial separation. After years of stagnation in which the Legal Aid Board was starved of additional funding, the board is now in a position to develop and reach out to all those in need of legal representation for family law cases.
The progress now being made has not been made without significant additional funding from the Exchequer, but those resources are not unlimited. They simply cannot be increased sixfold in the immediate future to deal with tribunals. No Government could accept that demand and this Government is simply not in a position to do so.
Senator Lee and Senator O'Toole would appear to appreciate the nature of our problem. Their amendment would have the effect of removing social welfare tribunals from the scope of the statutory scheme, at least for the time being. That amendment would undoubtedly lessen the quite dramatic impact of Senator Norris' Committee Stage amendment. I must, however, emphasise that the immediate inclusion now of even the Employment Appeals Tribunal would result in large increases in waiting lists and would divert the board's limited resources away from its primary focus.
The fact that over the years, the legal content of cases before the Employment Appeals Tribunal appears to have increased is of concern. In so far as legal aid may be involved, I am prepared to review the position, in consultation with the Minister for Enterprise and Employment. If a structured approach can be developed, it may be possible to extend legal aid to certain of such cases, depending on how the current development programme of the Legal Aid Board works out and also on the Exchequer position.
That is as far as I can go on the matter at present. I ask the House to support my amendment and to accept the reality of the situation as I have outlined it. I am not, regrettably, in a position to accept amendment No. 15.
For the benefit of Members of the House, the Minister has proposed this amendment and he will be replying to it. There will be only one opportunity for Members to speak on it. Amendment No. 15 is related to amendment No. 14 and Members will not be able to speak to it if amendment No. 14 is adopted. Therefore, if Members wish to speak on amendment No. 15, now is the time to do it.
Perhaps I should explain for the benefit of the House how Senator O'Toole and I came to propose amendment No. 15. I initially supported Senator Norris' Committee Stage amendment, which the Minister is now opposing. Therefore, in a sense I am now changing my position on the social welfare tribunal proposal. I am doing so because the Minister explained in the interim that the social welfare tribunal legislation as it presently stands and the provisions under it do not involve a significant amount of legal proceedings as such. The original amendment would open the door and bring the law into a situation where it is currently not that significant, and that was not part of our original intention. I was persuaded by that argument, subsequently presented by the Minister. It is also an indication of the commitment of Senator O'Toole and I to fiscal rectitude, or at least a degree of fiscal responsibility. It is not part of our purpose to be opening the coffers of the State in any irresponsible way.
I, for one, am prepared to withdraw the type of proposal I initially spoke for on Committee Stage of this Bill. However, I do make the fundamental distinction between the social welfare tribunal proposal and the Employment Appeals Tribunal. In the light of what the Minister said, the Employment Appeals Tribunal has become a major centre for legal disputation. That may be regrettable. I share the view that we are in many respects far to litigious and it would be desirable not to have that tribunal virtually turned into an alternative court. I listened with interest to the Minister's observation that this is not the case in a neighbouring jurisdiction. I see no reason why it has to be the case in our jurisdiction. I, for one, would support any Government proposals to try to ensure that the Employment Appeals Tribunal was not a legal forum, but it is.
The Minister has said that recourse to legal support in the Employment Appeals Tribunal is rising rapidly. That may be regrettable, but it means that those who are not able to afford it are discriminated against even more than if there was only occasional recourse to these tribunals. The purpose behind the original amendment was to ensure as far as possible equity and fairness and not have one side being able to draw on legal advice while another side was not able to afford it. That sort of equity is fundamentally compatible with basic fairness. If the situation is becoming worse, it enhances the urgency of trying to redress that matter.
One can debate or discuss at length the number of cases that are likely to be involved — these could be matters of observation and opinion to some extent — but unless the Minister can convince me that the current manner in which the Employment Appeals Tribunal operates is equally fair to all those bringing a case before that tribunal, especially when dismissal from a job is so central to the existence of a number of those involved — and even more so if they cannot afford the cost of legal aid in the appeal while the other side can — I would have no alternative but to press ahead with this amendment. This is the basic reason for it.
I want to re-emphasise the points that were made by Senator Lee. Both Senator Lee and I gave much thought to this amendment before we put it down and we put it to the Minister in the nature of a compromise that could be dealt with. It was made clear to us by the Minister, and I accept this completely, that the number of cases involved in the social welfare tribunals during the course of a year are enormous. Were it to be the case that legal advice could be given there, I accept that the tribunal might have huge queues and costs. While saying that, I do not for one moment accept that the vast majority of applicants would require legal aid. I also recognise that lawyers are involved in only a few social welfare appeals cases. They are normally conducted without lawyers being involved and I fully approve of that.
However, it may happen that lawyers might be necessary in the more complicated cases, which is why we initially supported Senator Norris' amendment. However, in trying to reach a position that the Minister could find as a compromise, I would point out there are a much smaller number of cases involved in the Employment Appeals Tribunal. Many people involved in those situations would be members of unions or similar organisations which would give them representation anyway. Other people would not be outside the net either. They would still have some element of money to seek support.
I would prefer it if lawyers were not let anywhere near the Employment Appeals Tribunal or the social welfare tribunal. I would feel happier if the Minister could bring forward legislation that would exclude lawyers completely from the Employment Appeals Tribunal and that would be my preferred option. However, that option is not available to us and it is not up to us to do that. That tribunal seemed to me to be a domestic tribunal. People who have had experience of the Employment Appeals Tribunal would be well aware that there is nothing as moving or as cruel as seeing somebody who would not be very articulate and would not have had great experience of dealing or coping with a stressful situation finding themselves, after having being sacked by a large multinational and taking a case against it for unfair dismissal, lined up against a senior or junior counsel or a solicitor and trying to cope with cross examination from those people. That is grossly unfair.
I recognise that under section 27(2)(b) of the Bill the Minister is allowed to extend the scope of the Bill in various ways. I am sorry that I unavoidably missed the Minister's contribution on his amendment. Section 27(2)(b) states that the section applies to all civil proceedings "conducted in any court or before any tribunal for the time being prescribed by the Minister, with the consent of the Minister for Finance, by order under this section". That means that the Minister has the power, by statutory instrument or regulation, to include the Employment Appeals Tribunal under the scope of this Bill should he wish to so do. I also recognise and accept that the tribunal is not excluded under the exclusion list in the other section. It is within the Minister's authority to include the EAT. I am not sure if social welfare tribunals are also envisaged under section 27(2)(b).
Having said that, the difficulty which remains for us is: how can we drop somebody in it in an unfair dismissals case? We felt that this would be a very small pressure on the centres, if the 15,000 annual social welfare cases were excluded, leaving the 600 or 700 cases which would come before the Employment Appeals Tribunal, only a proportion of which would qualify for legal aid under the other exclusion clause. It is reasonable to exclude one and include the other. If the Minister is not prepared to accept this amendment, as he has indicated, I will have no option but to support what was agreed on Committee Stage.
I oppose the amendment proposed by the Minister. Senator Norris and I had similar amendments on Committee Stage. The amendments which were made gave effect to putting this into the legislation. I am somewhat confused because when I lost a vote on Committee Stage it was pointed out to me that I was not permitted to re-enter an amendment on Report Stage but the Minister apparently can do so. I would have thought that when the House has made a decision on such a matter it should be accepted. I know that there is a three month period after which the Minister can then reject it. However, I fail to understand how if the House has decided something, the Minister has the right to try to reverse that decision.
Acting Chairman
The Chair is bound by Standing Orders and that is how it works under Standing Orders. The amendment was carried.
I accept that. As Senator O'Toole said, the Bill enables the Minister to include these tribunals under the scope of the civil legal aid scheme by order. That was our specific objective in tabling this amendment. The Minister did not indicate that he was not going to do that. However, all I can read from the fact that he is now removing the specific requirement for the board to provide representation for people before the Employment Appeals Tribunal and social welfare tribunals is that he does not intend to expand the scope of the board because if he did he would have accepted the amendment and would not be trying to reverse the decision of the Seanad.
The Minister made great play on Committee Stage and today of family law cases. I passionately believe that cases before the Employment Appeals Tribunals and social welfare tribunals are the most vital family law cases. If a family has no income, I do not know what chance it has to have any kind of a lifestyle. The only solution which we are offering is that when they get into serious marital difficulties we will be able to provide them with civil legal aid to process their divorce cases, at the risk of losing their income.
We are talking about social welfare cases — the poorest of the poor in this country. In order to qualify for social welfare, in the main, one must have little or no income. We are saying that we will let people get into as much difficulty as possible. It has been proven that when families find themselves in very difficult circumstances it can lead to separation or violence in the family. Pressures such as lack of income lead to the disruption of families. If the Minister wants to limit the description of family law cases to cases dealing with judicial separation or barring orders, then let him call it that. However, I believe that employment appeals and social welfare cases are entitled to legal representation if they need it.
I am not suggesting that 14,115 cases should have an automatic right to legal representation — they do not and they will not. Most of these cases are dealt with by letter and only a small minority of cases, particularly in relation to social welfare, even request an oral hearing. In some of those cases the board may decide, using the discretion with which the Minister has empowered it under this legislation, not to grant legal aid. That is the board's right.
It is grossly unfair in matters of social welfare legislation, which is extremely complex and a legal maze, to tell people who probably have minimal levels of education — it has been proven that those with limited education are those who become unemployed — and are the most disadvantaged in society to bat it out with civil servants and their legal advisers, should they be there.
My colleagues made the case in relation to the Employment Appeals Tribunal and I will not delay unnecessarily on that. However, a Minister for Equality and Law Reform is saying that he will not grant equality of representation to someone who has to appear before the Employment Appeals Tribunal, which, I understand, is a legal forum. If the Minister is not happy for the Employment Appeals Tribunal to have legal representation, then he should change that and not allow them to have legal representation if he is not going to grant it to somebody whose job is at risk. I feel very strongly about this and it is not a political issue. Senator Neville may smirk at that but the bulk of people with whom I deal are social welfare cases.
It is a political issue.
I do not know what Senator Neville's constituency is like but 60 per cent of my constituents are unemployed.
Most of the people I deal with——
Acting Chairman
Senator McGennis, without interruption.
I do not mind interruptions but I will not tolerate sniggering at people who are less well off than the Members of this House. I say this on behalf of the people whom I represent and, I would have hoped, on behalf of the people whom the Minister represents.
If I have to drag bodies out of anywhere to get the Minister's proposal reversed, I am prepared to do so. I ask the Minister, even at this late stage, not to push this wrong decision. The House made a decision on this. I ask him to abide by that and to extend this facility to those who are surely entitled to the best representation which a pseudo or supposedly socialist Government can provide.
I agree with much of what Senator McGennis said. The vast majority of social welfare appeals cases would not need legal aid because many of them, as Senator McGennis said, are decided by letter and very few go to an oral hearing. Legal aid would be necessary for a small number of cases. As Senator McGennis said, we are dealing with people who are very financially deprived and we should give them legal assistance when they need it.
I felt that the Minister might accept the amendment put down by the two Independent Members in relation to the Employment Appeals Tribunal. FLAC sent us information which indicated that the vast majority of cases before the Employment Appeals Tribunal would be very straightforward cases dealing with issues of entitlements and would not involve complex legal arguments. In 1993 only 936 cases were considered unfair dismissals, of which 439 were represented by a barrister or solicitor. That left 500 cases where people obviously could not afford legal services themselves. Those would be the only people who would be likely to qualify on a means test for legal aid, so we are not talking about a huge number of cases.
Debate adjourned.