I was pleased to hear the Minister say social welfare cases and those going before the Employment Appeals Tribunal were entitled to obtain legal advice from law centres and that free legal aid could be extended by ministerial order to the Employment Appeals Tribunal and the social welfare appeals tribunals when the financial and statutory provisions were in place. We all acknowledge that this Minister is strongly committed to civil legal aid and has greatly improved the budget for it. Being responsible people, we accept funds are not unlimited and we must prioritise. However, I am concerned that in certain cases, especially a small number before the EAT, people may not be in a position to afford representation. The Minister has clarified that should these cases go to court after the tribunal, civil legal aid will be available.
Civil Legal Aid Bill, 1994: Report Stage (Resumed) and Final Stage.
I have considerable experience of accompanying people to social welfare tribunals and I have found the officials are fair, anxious to obtain the full facts of a case and conscious that those who make an appeal are under certain pressures because of their circumstances. In most cases I have no reason to intervene, I simply sit with the person and support him. To turn this into a legal situation would change the nature of the tribunals; they would almost be like courts. It would be counter productive to have lawyers involved in such tribunals. Making legal aid available would ensure that everyone entitled to such aid — about 14,000 people — would request it.
It was implied that in some constituencies there would be no social welfare problems. There are unemployed people in every constituency; I do considerable work with the unemployed and those on social welfare in my area. I am one of the few people here with direct experience of social welfare because I was receiving it when I was elected to the House.
There is more legal involvement on the Employment Appeals Tribunal, which is having a negative effect. As the Minister said, that tribunal was never intended to be a court situation. The members of the tribunal are extremely concerned about this and are looking — so far unsuccessfully — at ways to roll this back. We feel the informality which was originally supposed to be part of the tribunal has now been removed.
The approach of the tribunal is to find the truth — not the legal truth as found in a court, which may be different to the truth in some circumstances. For instance, a person may give evidence which in a court could be regarded as hearsay. I want to know whether it is right or wrong, not whether it is hearsay. Sometimes when matters are investigated by allowing non-legal people to express themselves in their own way — as the EAT is meant to do, in an informal setting — one arrives at the real truth, rather than using what is acceptable to be presented as evidence in a court of law. That is one of the concerns.
When I sit on the tribunal and a lawyer says something is hearsay or raises an objection, I say that unlike himself, the witness is not a legal person and should be let speak. In fairness the various chairpersons on the tribunal, who are lawyers, do the same. Often it is members of the tribunal who intervene in this way and they do so because they are conscious of the need to allow the situation to remain informal. However, the position is changing and the tribunal is anxious to reverse that change.
The Minister said 910 of the 5,710 cases before the tribunal last year had legal representation. I am surprised the figure is so low; I thought it would be higher. Contrary to what Senator Mulcahy said the last day, 95 per cent of those who come before the tribunal would be entitled to free legal aid if it was available, because they would have been dismissed from employment and living on social welfare. They do not have jobs and would be entitled to civil legal aid. Would it be surprising if the figure of 910 with legal representation doubled, trebled or quadrupled because of the developments in the tribunal?
We on the EAT are in the process of rolling this back. A decision as was taken the last day encourages and facilitates more legal involvement on the tribunal because whether we like it or not, people feel they are better represented with a lawyer. Based on my seven years experience of the tribunal, I do not accept that. Sometimes it can be to their detriment because one is always conscious of the need to listen fully to a person who does not have such back up.
Under labour law, a person attending the Employment Appeals Tribunal is presumed unfairly dismissed unless the employer proves that he was fairly dismissed. The Minister said that the 910 people who were legally represented last year at the Employment Appeals Tribunal increased the cost by 38 per cent. I challenge that because it will not stop at 910,1,800 or half the 5,710 cases. We are talking about more than 38 per cent; a conservative estimate would be between 50 per cent and 60 per cent.
Under present circumstances we must accept that we do not have £20 million or £30 million to give to the civil legal aid scheme. To do so would create chaos, as the Minister mentioned. It would be counterproductive to allow the Employment Appeals Tribunal and the social welfare tribunals to come under this area. It would destroy the situation which has been developed and improved by the Minister, who in two years has increased the moneys from approximately £2.7 million to over £6 million. We will not have £20 million or £30 million when the Bill is passed. Will the Minister for Finance give money to the scheme? I do not think he will in the present climate, particularly after what happened last week. What will be the consequences if he does not do so? There will be total chaos and the service which is developing will not be available to the people who now use it.
Legal aid is not totally excluded from the tribunal. The Minister has left it open for future consideration by ministerial order. However, it will destroy the tribunal and the civil legal aid system as it stands at present.
I listened with great interest to what Senator Neville said because he has direct experience of these matters and it is always instructive to listen to the type of speech we have just heard. I also listened with some sympathy to the Minister. I accept that he has pushed the boundaries out for free legal aid and that he has done a remarkable and efficient job in this area. However, I am nailing my colours firmly to the mast and in so doing I am supported by the free legal advice centres and the Coolock community law centre. The people briefing me are happy for me to continue along this line.
As far as the budgetary cost and the drain on the Exchequer are concerned, those are problems which the Government must work out for itself. I am entitled to promote the amendment which I initially promoted on Second Stage and if a sufficient number of Members support it, we are playing a democratic role in assisting the Government to prioritise things. The Government and the Cabinet should take note of the unusual situation in which this House has a tangible, clear, direct and practical bearing on legislation as it goes through the Houses rather than pleading that there is a comparatively small amount of money available. I accept that these are times when the Government must make some financial adjustments. It would be an insult to the nature of democracy in this country if we were to feel inhibited by the sort of budgetary considerations which the Government has appropriately made and if we were negligent in our duty to represent the interests of all the citizens of this country in debate in this Chamber.
Reference was made on a number of occasions to the Pringle Committee on Civil Legal Aid and the Pringle report. I will preface what I want to say by a quotation from the Pringle committee, which states:
... in a comprehensive scheme, legal aid should be available for all types of civil proceedings. There seems to us no logical basis on which any particular case category could be excluded. The merits of any case and the question of granting legal aid should be assessed, not by reference to the category to which it belongs, but by reference to the particular circumstances of the case.
That is the nub of the argument I will make. It is still possible to sort out some of the cases and to apply certain specific tests so that people who should not morally be entitled to such aid do not get it.
There has been a lot of argument about figures and a further refinement of this argument took place this morning when the Minister indicated that 910 people were legally represented at the Employment Appeals Tribunal. I would like to consider this matter further. On Committee Stage the Minister argued that the Employment Appeals Tribunal heard 5,710 cases in 1993 and he estimated that 99 per cent of these would qualify for legal aid. However, it is not necessary to automatically assume that every case coming before the Employment Appeals Tribunal would require legal aid. For example, 3,480 of those 5,710 cases were under the Minimum Notice and Terms of Employment Act, 1973, on the question of whether the claimant was entitled to notice of dismissal or not. From the experience of FLAC and the Coolock community law centre, I am told that it is reasonable to suppose that most of those claims would not involve complex legal arguments as they were dealing with straightforward issues of entitlement. I realise, as I am making this case, that it has already been made in a shorter length of time by Senator Honan.
That is impossible.
A merits test applied by the local law centre would eliminate many such cases.
The principal need for legal aid at the Employment Appeals Tribunal is in the area of unfair dismissal claims, especially those involving complex issues such as the transfer of undertakings, regulations or insolvency and maternity matters. In 1993 only 936 cases heard considered unfair dismissals and, of these, 439 were represented by a barrister and/or a solicitor. This could indicate that almost half of the claimants are in a position to afford private legal services and therefore would in all likelihood not qualify on the means test for legal aid. We dealt earlier this morning with this area when Senator O'Toole argued about the nature of the board's opinion. This is the section of the Act which could be operated to exclude a considerable number of those people because a reasonable person could conclude or the board might have the opinion that they were in a position to afford them.
The Minister also outlined the 1993 statistics for the social welfare appeals officers, who decided on 14,115 appeals in that year. This seems to be a large number and one could be intimidated by it. Yet when one looks closer, it is not as substantial as it appears at first sight. A large proportion of these cases would not have had an oral hearing and would be decided on the facts. For example, whether one passes a means test in order to qualify for unemployment assistance is a matter of fact, not law. It is not necessary then to involve professional legal advice.
As with the Employment Appeals Tribunal, there can be a need for legal arguments to be made at hearings before social welfare appeals officers. Most people will be familiar with the cases concerning arrears of social welfare payments due to married women as a result of discrimination contrary to European Union law. Many of the concepts in the social welfare code have legal definitions such as "desertion" or "cohabitation" and claimants may need legal assistance where they have been refused payment on one of these grounds. It is appropriate and proper that persons in those situations should receive such professional legal advice.
Representation before the Employment Appeals Tribunal and the social welfare appeals officers should be seen as part of an overall legal services packmen age and not in isolation. For example, if the board had an educational role, the law centres could train welfare rights workers in local resource and citizens' information centres to provide assistance and representation in many of these cases. When the Minister said in his initial contribution that he had spoken to some of his colleagues it seemed this was the direction in which he was making some tentative moves. I would approve of that and I would encourage him to continue these moves in the event that the vote which is likely to be called on this is lost by those who wish to extend the services. I hope that anything we do this afternoon will be seen as an encouragement to the Minister to move in this direction. There is always the possibility, of course, that we may win the vote, which may not delight the Minister but will at least create an interesting situation.
The board should have the competence to assess each individual application on its merits and decide whether legal aid is warranted. In many cases, for example, where the issue of the case is a question of fact and not law, a referral to the local welfare rights officer may be appropriate. A full legal services approach would encourage local resources citizens information centres to develop first year services in conjunction with the nearby law centre, thereby alleviating much of the prospective work load of the law centre.
Both social security and employment law are complex areas with which lay people find it difficult to come to terms. Not only is there a large body of domestic legislation but there are many EU Directives affecting entitlements in these areas. Dismissal from work and claiming social security payments are of great importance to those with limited means and therefore with limited access — if any access in some circumstances — to private legal services. To date, these types of case have been excluded from the remit of legal aid and forced to rely on the services of voluntary organisations and the goodwill of the legal profession.
Over many years working with the voluntary organisations I have had much contact with the legal profession. There are many honourable and excellent lawyers who frequently, in cases of merit, give their services free of charge to those who cannot afford it. I could list a number of these people and I salute them. I am sometimes critical of the legal profession but I am well aware that even before this legal aid situation was created, there were honourable and decent members of the profession who did good work.
Including the Minister.
I note that all the lawyers in the House are pointing to themselves, including the Minister. Senator Mulcahy. Senator Gallagher and the Minister are included in this, so also is Garrett Sheehan, who was remarkable for the work he did in the rather grimy circumstances of the Dublin District Courts. I honour him for that.
There are people who may be excluded under the operation of the law if the amendment is not accepted. In addition, certain types of case will be excluded. I remind the House of the quotation from the Pringle Committee with which I opened my contribution, where it states: "legal aid should be available for all types of civil proceedings". It goes on to state, uncompromisingly and categorically: "There seems no logical basis on which any particular case category could be excluded." If the Bill is re-amended it will offend against this principle so clearly enunciated by the Pringle Committee in 1977.
As many Senators have eloquently said why civil legal aid should be extended to those involved in employment tribunals I will not address the issue again. Senator Neville made the important point both on Committee Stage and today, that since so many people, especially from the employer viewpoint, are now bringing legal experts with them to the Employment Appeals Tribunal, which did not anticipate becoming a legal forum, it is most unfortunate the Minister is unable to extend legal aid to the tribunal at present.
In the area of family law I have, hopefully, terrorised various Ministers for many years on the subject of the terrible delays in the legal aid centres. The report of the Second Commission on the Status of Women states that 75 per cent of the clients of the law centres are women. This is hardly surprising given that so many women in Ireland are engaged in home duties or are working in very lowly paid jobs. They have very little in the way of income if they have to take cases on their own behalf.
The long waiting lists and the lack of real access to legal aid impacted far more seriously on women than on anybody else in this country. I am well aware of the importance of finance, but it is also important to remember that there were great delays in many law centres, in addition to the delay in these cases coming to court. The Minister has made a big effort by increasing the number of centres and the number of people working there.
However, it was not just a matter of the delay in justice, which was bad enough. A very large number of these women required considerable courage, and in many instances physical courage, to continue these cases. Only last night I was told of a woman who obtained a barring order where her husband and his brother broke into their house and beat up their 17 year old son so that he could get at her. We are dealing not just with situations which have financial implications, although many of the cases before family courts are maintenance cases and so on, but with barring order cases, custody of children cases, applications for access to children and judicial separations. In all these cases, many people are in constant danger from violent people living in their homes and they do not have the wherewithal to bring them to court to get them out.
I have requested that barring orders be extended to include not only husbands but anybody who is violent in the home, such as co-habitees and sons. The woman, being the smaller person, is usually the victim of the violence. In view of this I am unable to support the excellent suggestion that the Employment Appeals Tribunal should be included.
Senator Norris raised the issue of the means test, which stands at £6,200 at present, a very low figure. Hopefully the Minister will do something about it in the near future. The legal aid scheme — not the civil legal aid scheme — could save some money if soliciting was decriminalised again. Legalising prostitution and decriminalising it are two different things. While the ladies I know who have to go to court when they are arrested are grateful for legal aid, the gardaí would be happy if they had less involvement. There is little knowledge to suggest that this legislation has been of any value.
That is why we opposed it.
That is correct. I suggest that the Minister encourage his colleague, the Minister for Justice, to consider this area again. He could tell her that she would be saving money which could then be applied to the civil legal aid cases. We might then be in a position to bring more of these worthy cases under the Civil Legal Aid Board in the near future.
I supported the amendment that civil legal aid should be extended to the Employment Appeals Tribunal and to the Social Welfare Appeals Board. I attended the House to listen carefully to ensure that my vote would follow on careful consideration of the issue. I was most impressed with Senator McGennis as she appears to be very close to the whole area of employment and social welfare appeals. I was especially impressed by her point that those most in need and having problems with social welfare are the very people who are losing their jobs. Senator Norris then spoke of the need to prioritise. This area really presents the problem to the Minister.
When it comes down to priorities, Senator Henry's point is one that must be taken into account. She made the point that family law cases, maintenance orders, barring orders, custody of children and violence in the home take priority. The Minister says that 95 per cent of civil legal aid goes to family law cases. If we extend the aid with the best intentions in order to be fair to everybody, we will include the 910 out of 5,710 cases that applied in the Employment Appeals Tribune in 1993. It seems that if civil legal aid is extended, it will swamp the cases that have top priority, the family law cases. It is a priority we must face. It appears to be one of the tough decisions that those who must take decisions in Government, in the Executive and in these Houses, must take.
Unfortunately, we must create priorities. The State has had to decide on occasion to allocate more money to the blind than to the deaf. That is not fair; it is a priority. The State has decided to allocate more resources to the west than to the east. That is not fair; it is creating priorities. In this case the Minister decided to place family law cases at the top of the list of priorities and other cases will take second and third places. On that basis I have no choice but to support the Minister in the view that on this occasion he believes we are going to concentrate on those most in need. At this stage the resources should be allocated to family law cases. Therefore, on that basis I will support the Minister's view that we should not include employment appeals or social welfare cases.
The Minister has promised a review in certain cases, depending on the situation — I think they were his words. He also made the point on section 27, if I remember correctly, that there is the opportunity in that area too. On that basis I will support the Minister and, therefore, I am not able to support the amendment to have the services extended to other areas that have been put forward with the best will and intentions in the world.
Whatever contribution I make today need not be lengthy as the arguments have been thoroughly versed, in particular the arguments in favour of the Fianna Fáil position made by Senator McGennis.
However, I believe the Minister and the Government are out of line with public thinking on the issue. There is a general need for a comprehensive scheme of free legal advice. One of the most frequented set of tribunals are the Employment Appeals Tribunal and the social welfare appeals tribunals. Unlike the Circuit Court, it does not take years to get a case heard in the Employment Appeals Tribunal. First, one must make application within six months of being dismissed. After that the time before being heard is relatively short.
The argument the Minister advanced on Committee Stage and again today is not a valid one. He tried to drown us with numbers, if I can use that phrase. He claimed there were so many cases before the Employment Appeals Tribunal that this would swamp resources and take money away from other required resources. The fact of the matter is that most people in my experience — and I speak as a former vice-chairman of the Employment Appeals Tribunal — have the necessary means to obtain their own legal representation before the Employment Appeals Tribunal. A small minority of people would be involved — the underprivileged, the downtrodden, people without resources and information. A relatively small minority of cases come before that tribunal without the assistance of a legal representative and who face on the other side, as was indicated on Committee Stage, a solicitor and barrister perhaps for the employer.
It has been said that the Employment Appeals Tribunal was and is supposed to be an informal tribunal. Sometimes it is and I agree that is the way it was meant to be. But surely no Government expects an ordinary member of the public — someone who did not benefit from a full education perhaps — to have the expertise, time or knowledge to delve into what is at this stage a fairly voluminous corpus of law, in terms of statutes, precedent at the tribunal and pertinent cases in the Circuit and High Courts, not just is Ireland but also in England, which can pertain and be relevant to a decision.
The effect of the Minister's position today and on Committee Stage is that certain people will enter the Employment Appeals Tribunal without the assistance or protection of a lawyer in circumstances where such assistance and protection is vitally necessary. I appreciate the sincerity of the argument advanced by Senators Henry and Quinn but I do not believe the Minister gave sufficient evidence to show that the priority would be taken away from family law cases if this new head of cases were also admitted. If that occurred family law cases would continue to be dealt with and extra resources would have to be found to cover the Employment Appeals Tribunal. We are talking about resources. There is no point in the Minister bringing in a fancy Civil Legal Aid Bill and it falling at the first hurdle, which is money.
In that regard, will the recently announced embargo on public service recruitment affect the employment of the proposed legal aid solicitors? That would be a matter of concern to the entire House. Again, if we bring in this legislation and do not have the solicitors, it hardly makes sense. I honestly think the Minister is out of step and he should consider whether he will press his amendment.
The debate on this section has been interesting but there are certain points I want to make. First, if Senator Norris bases his support on what is contained in the Pringle report. it stated, if I remember correctly, that all legal proceedings should be of equal value and should be given legal aid. The fact is that a tribunal case and a social welfare appeal are not termed legal proceedings. By nature they are not legal proceedings and are not meant to be legal proceedings. Because of those who require them, they are informal. As Senator Neville rightly explained, the system allows people to speak their mind, not in a legalistic way but in a way that gets at the truth and finds out what is happening. People who are not trained in the legal profession do not realise the significance of words used, or not used as the case may be, but may nevertheless have a valid claim. The necessity to achieve justice and fairness by allowing a decision to be made on the basis of what people say, straight up, is more important than getting bogged down in technicalities. That is what will happen if the Bill, as it now stands with that particular section, goes ahead.
I am concerned at the way we want to deal with things in society. This is a broader issue. We can say that the people most in need, those who are dependent on social welfare, should be given legal aid. However, we must look at the role of the legal profession. Are they to be dragged into everything? Are we to get to a stage where we cannot open our mouths without a lawyer by our side? Justice would not be served by doing so.
I take issue with some of Senator Mulcahy's comments. He said the Government and the Minister were out of line on this issue. No Minister could have done more for people requiring legal aid than the present Minister, Deputy Taylor. He deserves great credit for not only getting the extra funds, which have not been considered a top priority by Governments, from the Department of Finance but for using them in a way which is best for those who need them most. The Minister is not out of touch. Perhaps Senator Mulcahy is out of line in saying that most people who go before the Employment Appeals Tribunal can afford legal representation.
They can.
I dispute that. If legal representation was to be allowed for the Employment Appeals Tribunal, the Minister conservatively estimates an increase of 38 per cent in the workload of the Legal Aid Board. It has been my experience and that of Senator Neville that the vast majority of cases which go before the Employment Appeals Tribunal involve people who have been made unemployed or have been dismissed.
A lot of them are paid well.
They are unemployed and do not have the means by which they can take a case. They may have lost their entire income. It is sad that people do not realise the financial restraints that exist and the nature of which the Bill seeks to address.
The country would be crazy if it brings lawyers into everything. One cannot be a jack of all trades because one is, therefore, master of none. I have studied employment law and social welfare law and they are very complicated. A solicitor is not always the best person to deal with those matters.
A barrister.
A solicitor may be dealing with many other cases. One really needs to build up an expertise in those areas of law if one is determined to handle them properly on behalf of those who seek help. Trade union officials and people dealing with such cases on a day to day basis are better representatives for the people who need them than a lawyer might be. For that reason we should leave the system as it is; it works very well.
There are at least 14,000 social welfare appeals per year. If they were to qualify for legal aid, everybody would automatically appeal decisions. Why not, as they would have nothing to lose? It would throw the legal aid system and the social welfare system into chaos. In terms of the administration of social welfare there would be no certainty as to decisions. The social welfare system is complicated enough without adding to it. We would be better served by simplifying the social welfare system so that people would be more readily aware of their entitlements. We should direct our energies to that end rather than further complicate a system which is already overpowering.
Some of the earlier speakers talked about lawyers not being involved and how they would not be involved if they had their way. What they go on to say is not only a contradiction in terms but is also counterproductive. Those who need representation at Employment Appeals Tribunals and when seeking a review of a social welfare decision would not be best served by bringing in the legal profession. A tribunal or a social welfare officer may not take kindly to the cases being presented by lawyers. That is not the way we want to get at the truth and provide justice for those who need it. I support the position of the Minister in this regard.
I would agree with Senator Quinn that this is a question of priorities. It is important to bear that in mind. With regard to the case being made to try to extend the amount of moneys available, it is better to try to pinpoint the areas where the money would be most needed. There is a need to provide enough moneys where questions of maintenance of spouses, barring orders, custody of children or judicial separations are involved. These are most important areas. However, that is not to minimise the importance of other areas. If sufficient funds were available I would be happy to go along with the provision of moneys for employment appeals or social welfare appeals. At present the Minister is correct to pinpoint specific areas which require improvements.
When I was in Opposition I paid tribute to the Minister on a number of occasions for a lot of his work. He was endeavouring to do a lot of difficult work in an area which had not received the required attention, funds or sense of purpose. The Minister gave that direction and sense of purpose. I am happy to repeat what I said in Opposition now that 1 am in Government with the Minister.
Senator McGennis made her points eloquently and I understand there are people who have difficulty presenting their case at a social welfare or employment appeal. In another regard people who have medical problems and have to go before medical referees often, of necessity, require independent medical advice to counteract the medical referee. I hope there will be a set of priorities and this is something we should work towards in the long term.
A decision has to be made now about what we are going to do. The Minister's proposal is reasonable and I fully support it.
I thank all Senators who have contributed to this interesting and constructive debate. I know they are all well motivated in what they seek to achieve. In one sense we all want to achieve the same thing — the greatest possible expansion and extension of this service as soon as that can be achieved. Senator Quinn and Senator Henry hit the nail on the head. We are talking ultimately about a question of priorities.
Senator Norris referred to the budgetary costs — I did not quite catch the way he put it — having to work out for themselves or something to that effect. The interesting point about the situation we are debating is that it does not involve any budgetary cost at all. No matter what amendment is agreed or lost today, it does not effect the budget one iota. It will not produce one single penny more in the money available to run the legal aid service. Therein lies the problem.
If all we had to do was to bring in a provision that the Legal Aid Board may deal with this and that in addition and that, ipso facto, there came with that the money to fund it, we would all be agreed. None of us would have any problem at all. The budget of the Legal Aid Board, remains the same, and that is the difficulty I have to face in the real world. It is true that the much increased fund I have succeeded in building up for the Legal Aid Board over the last couple of years has had major effects. The waiting lists have been drastically reduced, but there are still waiting lists. It is not as though anybody in any legal aid office has nothing to do; far from it. There is still a large burden of work in the family law area, even as we sit here in this House.
When this matter was before the House on Committee Stage, I stated that I had under review and hoped to introduce shortly an increase in the eligibility qualifications for people wishing to access the legal aid service. Coincidentally, I got final approval for that from the Department of Finance this morning. I am happy to be able to tell the House that I will be increasing the eligibility qualification for people who wish to access the Legal Aid Board's services by 18.5 per cent. The effect of that is that there is now a large number of people who need to access the Legal Aid Board service, who have been disqualified from doing so until now and will now be qualified as a result. It is understandable that this will ipso facto put an additional burden on the existing resources of the Legal Aid Board.
The Department, at my request, researched what the likely increase would be if I were simply to allow Employment Appeals Tribunal cases to qualify for Legal Aid Board assistance. The figure they came up with was 910 cases, which represents 38 per cent of the existing capacity of the Legal Aid Board, not counting the new work that will come from the increase in qualifications. Senator Neville said that this is a gross understatement and that it could perhaps be even double that. Taking it as a conservative figure, the effective increase in the workload of the Legal Aid Board by 38 per cent at one foul swoop would throw the operation of the system into complete and total disarray. It would be impossible for anybody to get advice or attention within anything like a reasonable time. That is not to say there is no merit in the need at some stage for representation before the Employment Appeals Tribunal.
I was at pains to point out in my statement that when the Legal Aid Board builds up and the structures and resources are there, within whatever period it may take, it will be possible to extend by order the operation of the Legal Aid Board to tribunal cases. It is my intention to build up the board as best I can, depending on budgetary constraints year on year, and I have taken the power in section 27 (2) (b) of the Bill that would enable me to make such an order without having to trouble this House by coming back to it. It is my intention to do that when the resources, structures and funds are there to do it.
I urge Senators to recognise that we are not conducting this debate in a vacuum. We must have regard to the resources that are actually there. The priorities which I have settled upon are the correct priorities for the moment. When resources increase, the eligibility of other priorities will come into play and we must decide what they will be. The question of tribunals will be high on those priorities, although there could be other excluded categories of claims which one would have to look at and balance where one would go. I concede that the question of tribunals, in some circumstances, would be an important priority but now is not the time. I ask Senators to accept my bona fides on that and to accept my amendment.
Tá
- Burke, Paddy.
- Calnan, Michael.
- Cashin, Bill.
- Cosgrave, Liam.
- Cotter, Bill.
- Cregan, Denis (Dino).
- D'Arcy, Michael.
- Enright, Thomas W.
- Farrelly, John V.
- Gallagher, Ann.
- Henry, Mary.
- McDonagh, Jarlath.
- Magner, Pat.
- Maloney, Sean.
- Manning, Maurice.
- Neville, Daniel.
- O'Sullivan, Jan.
- Quinn, Feargal.
- Reynolds, Gerry.
- Ross, Shane P.N.
- Sherlock, Joe.
- Taylor-Quinn, Madeleine.
- Townsend, Jim.
- Wall, Jack.
- 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.
- Wright, G.V.
An Leas-Chathaoirleach
Amendment No. 16 is consequential on amendment Nos. 20 and 22. Amendment No. 17 is related and all may be discussed together by agreement.
Paragraphs (b) and (c) of subsection 4 of section 28 preclude the Legal Aid Board from granting a legal aid certificate if the applicant is acting on behalf of a group of persons having the same interest in the proceedings, or the board is of the opinion that the intended proceedings constitute a test case. These exclusions exist in the present non-statutory scheme.
On Committee Stage a number of Senators expressed concern about the fact that the Bill precluded the possibility of the board involving itself in test cases and class actions. The effect of amendment No. 20 is to allow the Minister by order to bring such cases within the scope of the statutory scheme. That is a considerable advance on what is contained in the Bill as it stands. I agree with those Senators who are of the view that the Bill should not completely preclude the possibility of legal aid being made available for such cases at some time in the future. I hope Senators will support my amendment which goes some way towards meeting their concerns.
Government amendments Nos. 16 and 22 are consequential on the acceptance of amendment No. 20. Amendment No. 20 contains some useful redrafting of what constitutes class actions and test cases and it would help to clarify the matter in that regard. Amendment No. 17 proposed by Senator McGennis and Senator Rory Kiely would have the effect of automatically extending legal aid under the Bill to test cases and class actions. I am not disposed to accepting such an arrangement because the full implications would have to be worked out having regard to, among other matters, the impact on the limited resources of the board and the Exchequer position.
I accept that the Minister has gone a considerable distance towards achieving the objective of my amendment. We debated the test cases, and specifically the women's social welfare case, at length. What I am attempting to do might be too much so I will accept one limited success today.
I welcome the Minister's amendment. He is going some distance towards meeting the concern we expressed on Committee Stage about test cases and class actions.
I have one question for the Minister although I am probably out of order. A legal aid certificate is mentioned in amendment No. 22. At the launch of the Women's Aid document, "Zero Tolerance", a few days ago and in a submission made to the Oireachtas Joint Committee on Women's Rights, mention was made of the fact that women in situations of domestic violence cannot get a legal aid certificate. Their situation is not considered an emergency. I do not know where I can raise this matter so I am bringing it to the Minister's attention now. It is hard to understand how women in such circumstances would not be in emergency situations. Perhaps the Minister would explain what constitutes an emergency for a legal aid certificate.
I welcome the Minister's movement in the desired direction. It strengthens the potential of this legislation considerably.
I thank the Senators for accepting my amendments. With regard to Senator Honan's query, the position, as I understand it, is that in emergency cases there is no question but that a woman is entitled to and receives a legal aid certificate straight away if there is any danger to life or limb or anything of that nature for her or her child. Emergency situations are given immediate, top priority and that is standard procedure in all law centres.
This is a drafting amendment to correct a punctuation error.
This also is a drafting amendment to correct a punctuation error.
Amendment No. 21 is a drafting amendment to correct a punctuation error.
This is a drafting amendment to correct a punctuation error.
I move amendment No. 24:
In page 20, between lines 11 and 12, to insert the following:
"(2) The Minister shall review the means test annually by application of the Consumer Price Index.".
There is no need to speak at length about this amendment. It is a common sense provision.
I second the amendment. However, today the Minister announced an increased income limit so I will not press the amendment.
I welcome the Minister's announcement of the increased limits for the means test. This will increase the work of the legal aid centres. It is more understandable now why he had to refuse to include the sections we had hoped he would be able to include. I congratulate him on having persuaded the Minister for Finance to agree to this and I welcome it wholeheartedly.
This amendment is a rather good proposal. I also wish to be associated with the expressions of congratulation and appreciation to the Minister for having secured the 18.5 per cent increase he announced earlier. However, that in itself shows how dependent one is on the success of a Minister at any given time in extracting support from the Government and from the Department of Finance. It is the first time in several years that an adjustment has been made. The purpose of this amendment was to ensure regular annual adjustment rather than to leave one dependent on the success of a Minister which may or may not occur.
While I congratulate the Minister I am sorry that this amendment is not being pressed more forcefully. If legal aid is to be taken seriously on an ongoing institutionalised basis and if it is not to be disproportionately dependent on the goodwill of individual Ministers, these institutional requirements should be built into the legislation. With that expression of regret, I congratulate the Minister once more on his individual achievement.
With respect, Senator Lee's regret is misplaced. If this amendment was accepted, the Minister would review the means test by application to the consumer price index. In fact, the increase I just accorded is a good deal in excess of the consumer price index. I have increased it by 18.5 per cent and if the amendment applied the increase would have been between 14 and 15 per cent.
This is a drafting amendment to correct a punctuation error.
Amendment No. 28 is an alternative to amendment No. 26 and both may be discussed together.
I move amendment No. 26:
In page 21, line 30, after "subsection (3)" to add ", subject to the proviso that a law centre cannot provide legal aid to more than one party to a dispute".
This returns to old ground. To be fair I thought the Minister made a good case on Committee Stage on why we should not proceed with this amendment. It was not an entirely convincing case but it was a good one. Our purpose was to try to ensure that the board would establish and maintain a panel.
The argument for the amendment is that two people who are party to the same dispute, particularly the woman, should not find themselves in a potentially awkward situation at the same law centre as the other party. The argument against the amendment is that in the country centres are so far apart that sending people to other centres is not realistic. We had some discussion on geographical matters. Amendment No. 27 relates to the same concept. Our wish is that a panel of solicitors would be established in the vicinity of the law centre and cases would be contracted out to them. Then the danger that this type of unfortunate personal contact which could be demoralising to one of the parties involved would not arise.
Amendments Nos. 26, 27 and 28 are linked. I can see better arguments to the contrary than I have heard on some of the issues we have already passed but there is a substantive case here which merits careful consideration. If it is the case that those panels "shall" be established as distinct from "may" be established, it would ensure that this potentially unfortunate situation would not arise.
I second the amendment. I see the problems which could arise because of distance. There could be a legal aid centre in a small town and the next legal aid centre could be 30 miles away. There may be other solicitors in the town but they might not want to take on family law cases. Despite the Minister's desire to have a panel of private solicitors in the town, he would be unable to get them to serve because I do not think they are obliged to serve on these panels. Senator Lee has wisely explained that we have seen the problems the Minister has with this amendment.
I was impressed by the argument advanced by Senator Lee, and certainly by the latter part of his contribution. I said on Second Stage that the Minister should set up panels of solicitors on a countrywide basis. He should not rely so much on this obsession with employing more and more civil servants as seems to be the direction in which the civil legal aid system is going. I will not repeat my comments on that.
On the issue of whether one legal aid centre can or should be able to act for both sides, I disagree with Senator Lee and agree with the Minister's thinking. It is not just a question of practice; it is also a question of — to use a much abused word — ethics. Both the solicitor and barrister professions proceed on the basis of ethics and trust. This is an important concept in the legal profession. Much of the business done in courthouses, offices or over the telephone is held in trust and a word is taken on trust. Within both the Law Society and the Bar Council, there is a remedy when the concept of trust is breached. The concept of confidentiality is allied to this.
In firms of solicitors where there are several partners, it is not unknown for two partners to be on different sides of a case. It is obviously much easier in a large firm where there is a large number of partners and there would not necessarily be a close interaction in relation to any one case. Similarly in the Law Library two barristers could sit beside each other at the same desk. Such is the level of trust that one can leave one's papers on the desk and be quite confident that nobody from the other side of the case will spy on them. If trust and confidentiality are removed from the legal system, one is left with little else. Once suitable arrangements for interviews and so on are in place, there is no reason a law centre cannot act for both sides. This is not just a matter of practice but one of principle. Reluctantly I am not in favour of Senator Lee's amendment.
I sympathise with Senator Lee's point about the awkwardness of having two people arriving at one centre and the forced personal contact that would entail. I agree with him even more on the point of law. I would be concerned about certain law centres where there is only one solicitor. It is difficult, if not impossible, to act in family law cases and adequately represent both sides and that is where I would be concerned. The sad reality is that solicitors must negotiate who will get what in terms of access, custody, maintenance and so on. My only cause of concern would be that some people would be caught in a situation where the local legal aid centre has only one solicitor, yet both people are entitled to legal aid.
I accept that the Minister has already opened many centres. When I spoke on this issue previously, there were no centres in my region. There is now a centre in Monaghan and another in Cavan. There is also a centre in Dundalk, County Louth, and they are all within reach. I accept that it is much easier now to go to a separate legal centre. I also accept that a panel of solicitors will be available to do such work. The practical fallout will be that the difficulty to which I have referred earlier will be reduced.
To take up Senator Gallagher's point, it would be out of the question for a solicitor in a one solicitor law centre to act on behalf of both parties. That could not possibly arise. As a result of increased staffing in the law centres in the last couple of years, only one centre is a one solicitor operation. All other law centres have more than one solicitor.
Amendments Nos. 26 and 28 require that in all cases where both parties are legally aided, they must be represented by separate law centres and were discussed previously on Committee Stage. I regret I cannot accept the amendments because it would not be in the interests of clients, the efficiency generally of law centres or the best use of the resources of the law centres. It could mean in many cases that applicants for legal aid would have to travel long distances to a law centre.
Any fears regarding possible breaches of confidentiality, as Senator Mulcahy rightly pointed out, are groundless. I understand that the Law Society of Ireland has issued no directive or guidelines on the matter in so far as private practice is concerned. It is fair to assume that no particular difficulties have come to notice. There is no rule of law on the matter either. The law centres as a professional agency will, where necessary, make arrangements to ensure that where, through its solicitors, it represents both parties to a dispute, the representation will be on a completely separate basis and that confidentiality will be maintained in each case by the solicitors concerned.
I am satisfied this is the best way to proceed and the best way to use the resources of the board. I am sure that any necessary and appropriate steps will be taken to ensure that warring parties will not meet in the waiting room of a law centre and that appointments will be made at times to meet the needs of that situation. For those reasons, I regret I cannot accept amendments Nos. 26 and 28.
I was not suggesting that the legal people involved would be in breach of any of the ethical standards which they observe so conscientiously. I was concerned about the human dimension whereby people who do not want to see each other might meet, which could happen by oversight or by accident and which may have traumatic personal consequences on the weaker personality involved. I am reassured by the Minister, in so far as I have allowed myself to be, that warring parties will not find themselves face to face in unfortunate circumstances. That is far more important to me than the technicalities on the legal side. I noticed Senator Gallagher said that there will be panels of solicitors, although I hope I have not misquoted her. Senator O'Toole and I had in mind panels of solicitors which would help to avoid any danger of such an unscheduled meeting.
I move amendment No. 27:
In page 21, line 34, to delete "may" and substitute "shall".
Senator Henry and I are in the same position in our collaborative endeavour, although I must admit I felt like replying to her the last time she seconded my amendment. Senator O'Toole and I intended this to be a constructive proposal stating "shall" rather than "may". It does not necessarily oblige the board to establish extensive panels. The idea of a panel of solicitors and a panel of barristers seems to us to be an eminently sensible one which the board should be obliged to establish rather than leaving it to its discretion to do so. How it would establish a panel, how elaborate it would be or its skill would obviously be entirely for its judgment. The principle involved is important and we hope to help it.
I second the amendment. I am totally behind Senator Lee as regards this amendment. I have often had difficulty with the words "may" and "shall". I am sure that when the Minister replies he will explain why he favours the word "may" rather than "shall".
While this seems like a minor amendment, it is important as it concerns the way we will run the legal aid scheme. I am not sure how the Minister intends to develop it in the future. He is employing more solicitors, which is good, but there is the question of taxation and people are being asked to pay more tax. I do not know if the Minister has done any studies on whether the Legal Aid Board would be more efficient if it were run by full-time solicitors or if greater use was made of independent solicitors and barristers. I believe it would be more efficient if greater use was made of the outside services of solicitors. It would obviate the need to set up personal structures and so on and to employ more public servants. For that reason, I support the amendment.
Regardless of whether the words "may" or "shall" are used, when a panel was in operation in my area it worked very well. If a legal centre has only one solicitor, it is helpful to know that the other party can be represented in the locality by a private practitioner. Solicitors operating in legal aid centres have built up a marvellous expertise in family law which is hard for a practitioner dealing with other matters to compete with. My experience of a panel which the Minister provided to relieve a backlog of cases in previous times was that it worked effectively.
Section 30 (1) provides for legal aid and advice to be made available through law centres or through solicitors or barristers whose names are entered on panels established and maintained by the Legal Aid Board for that purpose. Subsection (3) provides that the board may establish and maintain two such panels one to be known as the solicitors' panel and the other as the barristers' panel. I indicated on Committee Stage that this amendment would compel the board to establish and maintain two panels but the reality is that panels have been established and maintained against a background in which there is co-operation between members of both branches of the legal profession in the provision of legal aid and advice under the scheme operated by the board. That situation can continue only against a background in which the co-operation of members of both branches of the profession with the board continues. I am satisfied it would be presumptuous to take that co-operation for granted and assume that the board could always establish and maintain panels of barristers and solicitors. Subsection (1) addresses the reality of the situation, although I hope there would never be difficulty in organising panels of solicitors or barristers. The best course, therefore, is to leave subsection (3) as it stands.
As regards the point made by Senator Mulcahy, I have always taken the view that private practitioners have a role to play in complementing the mainstream of the legal aid service which is and will continue to be run by the law centres. There is a complementary role in particular cases and in certain areas for private practitioners and for that reason I introduced that scheme and will continue to review its progress.
I would like to briefly comment on the Minister's observations. He has taken a responsible attitude to this and I will defer to his judgment — it is an area in which I am not an authority — on the most effective way to employ the expertise of the legal profession for the achievement of these objectives. I was a little taken aback after we paid tribute to the high standards of the legal profession to hear the Minister use the word "presumptuous" to designate the possibility or to describe the assumption that one could rely on a willingness to co-operate in the legal profession in general terms towards the achievement of so admirable an objective. I hope the Minister will take on board Senator Gallagher's observations which express my sentiments admirably if only I had been able to do so in that way.
I pay tribute to those who participated in this fine, wide-ranging and sober debate. The entire matter has been debated in a very good atmosphere. I pay particular tribute to the Senators from all sides of the House who contributed. All angles of the legislation have been fully explored. The Bill has benefited from the care and attention it received in this House.
I wish to be associated with the Leader's remarks. Leaving aside what may have been critical comments made by Senator McGennis and myself on Second Stage and Committee Stage, I know the Minister and his staff invested an enormous amount of time and commitment in this legislation. Ireland will be a better place following the enactment of this welcome legislation. In terms of accepting amendments, perhaps the Minister might have a word with the ever-flexible Minister for Justice, Deputy Owen, who seems to be more than keen to embrace ideas from this side of the House.
I compliment the Minister for initiating this important Bill in this House. It has received a very thorough examination. I also compliment the Civil Legal Aid Board which operated on a non-statutory basis for many years. I hope the Bill has a speedy passage through the Lower House.
I congratulate the Minister. I thank him for initiating the Bill in this House and I hope we have contributed something toward improving it. At times he may have found it difficult to believe that was the case. I congratulate him on his general initiative in this area and I hope he will return to this House with further improvements, in due course.
I congratulate the Minister. Sad though it may seem, in this country where so much emphasis is placed on the family, there are tremendous disputes and violence within families. This Bill and the extension of the means test will mean a great deal to those caught up in this kind of situation.
Perhaps the Minister's so-called reluctance to accept amendments is because he has put so much thought and effort into the Bill, that he does not need——
And the Minister for Justice has not?
And the Minister for Justice has not?
There is no reflection whatsoever on the Minister for Justice. We can slap ourselves on the back in the sense that the legislation has been fairly debated and the issues have been covered. During my time as a Senator, I have been impressed to see an increase from 39 to 75 solicitors serving the Civil Legal Aid Board, staff numbers increased from 60 to 129, funding increased from £2.7 million in 1992 to £6.2 million in 1995 and the opening of a legal aid centre in every county, something I thought I would never see. I congratulate the Minister and thank his officials for their work in that regard.
I thank all Senators who contributed so forcefully and constructively at all Stages of the debate on this Bill. It was a good debate and represented democratic politics at its very best. The interesting element of uncertainty that was always present added a particular spice to the proceedings which is too often absent from parliamentary proceedings. In many respects, this is all to the good. There were differences of opinion on particular matters and specific points but our ultimate aims for legal aid were not far apart. As with most things in politics, this comes down to what is possible at any particular time. We are doing the best job possible having regard to the current state of development of the legal aid system.
I look forward to further improvements, extensions and expansions that may be necessary in the future. I would not like to be considered a Minister who is difficult about amendments from the Opposition. I do not think I am. Comments to the contrary were made in connection with the Occupier's Liability Bill, to which an appreciable number of changes were made as it progressed through both Houses. Some amendments have been made, and changes brought about, as a result of the very helpful and constructive comments made by Senators on both sides of the House. The Bill may undergo further change in the other House and may return to this House for consideration of certain aspects.
I thank Senators for their help and contributions. I also thank the staff of my Department who have worked long and hard on this complex Bill which covers quite a wide range of the Civil Legal Aid Board's activities. Our thanks are due to them for the work they have contributed.