Seanad Éireann debate -
Thursday, 5 Nov 1998

Vol. 156 No. 18

Legal Aid Board Report: Statements.

Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace)

I welcome this opportunity to speak to Seanad Éireann and exchange views on the operation of the civil legal aid service provided by the Legal Aid Board. I will be listening carefully to contributions made by Senators and expect that this discussion will ensure that we are better informed on the situation with regard to the Legal Aid Board.

I congratulate the Legal Aid Board on the production and content of its annual report for 1997. I am sure Senators will agree that the publication is attractive in appearance and laid out in a clear and informative manner, with a useful and a detailed index. Most importantly, it is full of meaningful information on the services provided by the board, and relevant statistical information presented in an easily understood manner. It is a model of clarity which other bodies could emulate when producing annual reports.

The Legal Aid Board was established in 1979 to administer the scheme of civil legal aid and advice. It provided a legal service in civil matters to people with limited means and operated on an administrative basis until 11 October 1996 when the Civil Legal Aid Act, 1995, was brought into effect. Under the Act, as under the scheme, persons who are provided with legal services are required to pay a contribution related to their income. In many cases, this contribution amounts to £4 for legal advice and £23 for representation in court, although it can be increased where costs or damages are awarded in favour of its client. In accordance with the terms of the 1995 Act, the Legal Aid Board has the power to waive or reduce the contribution that a client may be required to pay.

The seminal years of the Legal Aid Board coincided with a serious economic recession and, accordingly, development was slow. Between 1979 and 1992 the board opened 16 law centres. When the Fianna Fáil led Government took office in late 1992, the board was preparing to open its 16th law centre. Conscious of the demands which the continuing programme of legislative reform in family law, including proposals for divorce, was making on the board's resources, the Government approved a programme of expansion and development for the Legal Aid Board. When the present Government took office in June 1997 it continued to provide additional resources to the Legal Aid Board, resulting in a board which provides legal services from a nationwide network of 30 law centres. The board has a staff of 261, of which 219 are in the law centres. In 1998 the Exchequer grant will be £9.615 million. This is in stark contrast with the position prior to the Fianna Fáil led Government coming into office in 1992, when the board comprised 15 law centres, 99 staff and had an Exchequer grant of £2.685 million.

As a result of the expansion in the number of law centres and the recruitment of additional solicitors and support staff, there has been a significant increase in the number of persons receiving legal services from the board. In 1997, 7,784 persons received legal advice compared with 3,420 in 1992. In the same period, the number of applicants provided with legal advice and representation in court increased from 1,854 to 6,021. Of the 1997 figures, about 96 per cent of court cases and 90 per cent of legal advice cases were in the family law area. This ratio has remained more or less constant since the establishment of the board.

The board also operated the private practitioner pilot project for six months between October 1993 to March 1994. This project has continued to operate in the Dublin area since April 1994. Under the project, it is open to persons granted legal aid certificates to choose a solicitor from a panel for representation in the District Court in respect of barring orders, maintenance, safety, access, guardianship and custody cases. In 1997, 862 people granted legal aid certificates availed of the private practitioner pilot project, a significant increase on the 1996 total of 655 certificates. The board expects to be in a position to extend the scheme nationwide in the near future.

The significant increases in the resources allocated to the Legal Aid Board in recent years have facilitated the development of a nationwide civil legal aid service. However, these developments have been outstripped by the increase in the number of people requesting the services of the board. This has placed a very heavy demand on the board and has resulted in increasing delays in waiting times for appointments with solicitors. This fact is evident at many of the board's law centres. The situation has been compounded by the increasing complexity of many classes of cases, especially child care cases, and a consequential increase in the proportion of cases being heard in the higher courts.

While there are a number of factors involved, the main reasons for the increase in demand relate to the rapid pace of sociological change over recent years. This has resulted in an increase in the number of families experiencing problems, less reluctance than heretofore on the part of both women and men to acknowledge these difficulties and to seek redress, frequently by recourse to the courts.

Since the Judicial Separation and Family Law Reform Act, 1989, there has been a significant increase in the number of legal reliefs and remedies available to people who are experiencing difficulties in their relationships. Accordingly, the increase in waiting times at the board's law centres can be attributed to a significant degree to the continuing increase in the level of demand on the board's services arising from the introduction in recent years of such additional family law legislation. The Domestic Violence Act, 1996, and the Family Law (Divorce) Act, 1996, are two of the most important pieces of this new legislation.

The Domestic Violence Act, which was introduced on 27 March 1996, strengthened the power of the courts to make orders for the protection of persons in the home whose safety or welfare requires it. Also, it extended that protection to co-habitees and parents. The Family Law (Divorce) Act, 1997, which came into operation on the 27 February 1997 had an immediate impact on the board. When that Act came into force, 1,062 persons sought the board's assistance in relation to divorce proceedings and had their names placed on waiting lists. During the remainder of 1997, a further 1,113 people sought services from the Legal Aid Board for divorce proceedings. Of these, 2,175 people, 957 were on waiting lists at the end of the year while of the 1,146 applications for legal aid certificates relating to divorce proceedings received in the board's head office, 938 were granted.

Conscious of the deteriorating situation with regard to waiting lists at the law centres, in July 1998 Minister O'Donoghue approved 25 additional posts for the Legal Aid Board. Of these, 17 posts, including five solicitor posts, are for the law centres. In addition, he sanctioned the making permanent of six temporary staff in the law centres, three relief solicitors and three clerical officers, and the engagement on a temporary basis of a librarian for head office. I am confident that these additional staff will be allocated by the Legal Aid Board in such a manner as to make the greatest impact on waiting times at the board's law centres.

The high incidence of marriage breakdown illustrated by these statistics gives cause for concern, both in financial and human terms, because when a marriage breaks down, children of the marriage are very vulnerable to consequential damage. Such damage is particularly likely where the marriage has ended in bitterness or where the children do not have a continuing relationship with both parents. As I have already intimated, changes in the social climate in Ireland over recent years, characterised in terms of increased openness of public discussion and changed social behaviour, have contributed to an increase in awareness among people that society no longer demands that couples should continue in an unsatisfactory, unequal or abusive relationship. Victims of previously unmentioned and hidden abuses, such as domestic violence, incest and rape, are aware that concern for their plight is shared by community and State. Both are sympathetic to their plight and are involved, separately and collectively, in attempting to alleviate their situation. In this regard, since 1989, this House has passed a significant volume of legislation extending the range of remedies available to members of families experiencing difficulties in their relationships and providing for easier access to those remedies. This has had a major impact on the demand for the legal services of the board.

Conscious of the vulnerability of the family members caught up in such proceedings, and in particular children, more recent legislation has directed people towards counselling and mediation as a means of resolving their marital difficulties, as an alternative to availing of the adversarial judicial systems. Examples of this are to be found in the 1989 Judicial Separation and Family Law Reform Act, the 1997 Family Law (Divorce) Act and the recent 1997 Children Act, all of which contain provisions requiring that applicants seeking relief under one or other of these Acts would be advised of the availability of counselling and of mediation. The hope is that by these means the integrity of the family unit would be preserved, notwithstanding difficulty and breakdown in marriage relationships.

A committee was also established by my Department to co-ordinate services for marriage support and marriage breakdown. The Legal Aid Board participates fully in this committee. In relation to mediation, the board has actively encouraged its solicitors to consider whether cases are appropriate for mediation. Of course, solicitors are required by the terms of the relevant legislation to advise clients of a range of matters including availability of counselling and mediation. In pursuit of this objective, the board arranged for the head of the Family Mediation Service, which provides mediation services to separating couples, to speak to its solicitors and law clerks in relation to the availability of its services and the types of cases which are most appropriate for mediation. When the Family Mediation Service opened its permanent office in Limerick, the board also arranged for a special regional meeting to be held with its solicitors in order to promote the use of mediation. Following from this meeting, the solicitor in the Tralee law centre encouraged the setting up of a mediation clinic in the Tralee area and this is serviced from the Limerick family mediation centre. I understand from the board this is working in a most satisfactory manner.

The Civil Legal Aid Act, 1995, and its predecessor, the Scheme of Civil Legal Aid and Advice, provides that certain criteria must be met before a person will qualify for legal aid. The most important of these are the means and merits tests. With regard to the former, there is a statutory requirement that a person must have a disposable income of under £7,350 per annum before he or she will qualify for legal services under the 1995 Act. Disposable income is defined as the income that remains after various deductions have been made in respect of dependants, mortgage/rent, income tax, social insurance and such like that are incumbent upon a person to pay. An applicant with such a disposable income would be obliged to pay the maximum contribution while a person with a disposable income of £5,060 or less per annum would be obliged to pay the minimum contribution totalling £27. I refer Senators to pages 42 and 43 of the board's annual report which give a clear definition of what is required of an applicant in order to qualify for the services of the board.

A person applying for legal services from the board must also satisfy a merits test with regard to the nature of the case he or she wishes to pursue. Basically, this means that the person concerned must have a case that is sustainable and be reasonably likely to be successful in the court proceedings. Obviously, it would be a waste of the board's resources to pursue an action which has little chance of success or where, if successful, the benefit accruing to the successful aided person was of nugatory dimensions. Where the board refuses to provide a person with legal services on whatever grounds, that person may appeal the decision to a committee of the board.

The board recognises that certain cases will have an urgency attaching to them which is not present in all cases. Therefore, as a matter of policy, it has directed its staff to provide applicants with priority in certain classes of cases. The following is a list of cases falling into this priority category, which is of general application throughout the law centres: child abduction proceedings; circumstances where there is a real danger of children being taken out of the jurisdiction without the consent of the applicant; child care proceedings; domestic violence; where, under the Statute of Limitations, there is a danger of the time limits for issuing proceedings expiring unless immediate action is taken; where there is a danger of time limits in other legislation expiring; where there is a danger that assets may be dissipated so that they would be unavailable to meet the claims of the applicant and, District Court appeals, where the case has been dealt with under the private practitioner project which is run by the board. A substantial number of appointments are given each month on a priority basis. For example, 165 of the 910 appointments offered in law centres in September 1998 were for priority matters. None of those accorded priority was put on waiting lists.

I hope the circumstances I have outlined will be of assistance to Senators in developing a broad understanding of issues in relation to the Legal Aid Board. I thank Senators for this opportunity to address them on this important issue and I look forward to hearing their statements on the matter.

Mr. Manning

I welcome the Minister of State to the House. I echo her compliments to the people who drafted the report of the Legal Aid Board. It is a model of what such a report should be in that it is clear and the information is well presented. It also outlines a number of case studies in order that people can see what the board does and what is its core work. The people who prepared the report are to be complimented. It is written in clear, well presented English.

The Minister's speech has also been helpful and has provided a fair amount of information. However, I wish to make one small criticism of it. I do not know why people feel the need to score spurious political points. The clear implication in the Minister's speech is that the current revival or increase in free legal aid activities can be dated to 1992. On a number of occasions she referred to the Fianna Fáil led Government being responsible for this. However, for five years before that, Fianna Fáil was in Government, namely, in the period 1987-9 and the period 198992 with the Progressive Democrats. The clear impression that Fianna Fáil alone was responsible for the growth in free legal aid is nonsense.

The person more than anybody else responsible for the growth in legal aid activities is Mervyn Taylor who was part of the Fianna Fáil-Labour Government, or the Fianna Fáil led Government to use the Minister's term. It is not helpful to anybody if for whatever reason we try to disguise the reality. We are long enough around to know that no Government gets everything right. Legal aid has been on the agenda for a very long time. Even before it came into existence there were people working for it. Every Government within its economic circumstances has sought to promote it. If credit is being given I would single out Mervyn Taylor as the person who, as Minister for Equality and Law Reform, focused most attention on it. I was not going to make this point, but the reference by the Minister, which was perhaps inadvertent, slightly irritated me and distorted the reality.

The Legal Aid Board is a success story. From small beginnings in 1979 it has grown in a sustained way. It has a very skilled and dedicated staff and performs a range of valuable and essential services which, were it not for the board, would not perhaps be performed.

Clearly there are problems which are highlighted in the report. The biggest problem is the length of the waiting lists which in many cases are now unacceptably long and are likely to become even longer. Each case on the waiting list represents either a personal tragedy or enormous personal difficulty. There are real people behind the statistics. There is stress, emotional disruption, etc., which attends on people who are waiting even for their first appointment. The delays in some cases are as long as nine months in Kildare and ten months in Offaly. These delays create their own sense of stress in the board. Those on the board often get a sense of not being on top of things, of struggling against a list which is increasing and of fighting to simply stay afloat. This immersion in the sea of ongoing cases is bad for morale and sometimes makes it difficult for the lawyers to keep up to date with developments in their own area.

The Minister was very clear about the reason for the increase and I agree with her. The increase should not have surprised anybody. We are an increasingly litigious society. The Legal Aid Board, because it is publicly funded, may find itself more vulnerable than private practices in terms of people seeking its services. Private practice can either demand money up front or not take a case if it does not suit them. However, the Legal Aid Board is simply more vulnerable to answering all cases.

The other reasons for the increase are the very important developments in legislation, especially in family law and child care. It is fair to say that ten years ago there was virtually no family law. By and large the family courts were inadequate in numbers and for the most part the judges were not particularly well trained to administer family law. Frequently the family court almost became a punishment detail for a judge who himself had a problem. This atmosphere has changed dramatically. Today there is a very developed corpus of family law which culminated — although I suppose it will never culminate — in the divorce legislation. Family courts are more numerous than in the past and the judges for the most part are better trained. A level of courtesy and understanding prevails in the family courts which did not always exist in the past. The practitioners are more professional, even if my own impression is that the services on offer outside Dublin are not as good as those in the city — I am interested to hear Senator O'Donovan's views. There is an extra burden and hardship on those in the non-metropolitan area and there is enormous room for improvement.

As the Minister pointed out, the growth in family law has put a huge strain on the services of the Free Legal Aid Board. From my research I understand the quality of the service being offered by the Legal Aid Board in family law is second to none. Apart from the delays the quality of the service is first class. However, it is certain that the need for its services will increase dramatically. We will need more family law courts and family law judges. The Legal Aid Board will need significantly more resources in this area. Otherwise a totally unacceptable backlog will build up which will endanger the entire system. The warning signals exist in the report and are evident to those involved in family law throughout the country. The Free Legal Aid Board is only one part of the problem. However, unless it is provided with more resources in this area it may become submerged by one aspect of its work, namely, family law.

The Minister also referred to the growth in child care legislation. In terms of society and legislation we are now starting to catch up after decades of neglect. We are still at an early stage. Every party and responsible person in the country is serious about facing up to the problems in this area. However, with this seriousness must come a realisation that huge resources will be necessary and that what we are doing at present is simply not adequate.

The need for the services of the board will grow, often I suspect in areas which will require dramatic and immediate reaction. I listened carefully to the Minister and I ask the Free Legal Aid Board to ask itself whether its procedures currently operating in the thankfully rare but dramatic cases of child abduction and parental kidnappings, especially those involving a parent living outside the jurisdiction, are as speedy and flexible as they might be. I discussed this matter with lawyers involved in such cases and got an impression that while the Legal Aid Board was doing everything by the book and with the best will in the world, there was an absence of a necessary degree of flexibility which can be important. I am not making any charges — far from it — but I am simply asking the board to look at its involvement in such cases and satisfy itself — perhaps it is satisfied — that its procedures are as flexible and speedy as necessary.

I have no quarrel with the Minister on the issue of resources. The Minister has done very well by the Free Legal Aid Board in the provision of new staff. The work of the Minister and what he has got from Government is impressive. However, I wish to make some observations about the way in which resources are deployed. As I understand it, one of the biggest problems facing the board is the provision of staffing at the service levels. There is a major shortage of permanent secretarial staff, something which is not uncommon in other areas of the public service, largely due to rates of pay, conditions, etc. However, there is an over-reliance by the board on temporary staff recruited from agencies, with the result that it is often not possible to build up a sense of permanence, of people being in jobs for a long time and knowing what they are doing. People can be there one week and gone the next without any opportunity or inducement to become permanently attached to the job.

I am told that much of the routine work often falls on the shoulders of solicitors, keeping them from doing what should be their core task of looking after clients. In its own way this adds to the backlog of cases and damages the morale of people who feel they should be doing the work for which they were hired.

I am told by people connected with the board that the public service aspect tends to make it over bureaucratic. A former staff member who wishes the board well described it as being top heavy with bureaucracy at times. That can happen to any organisation in the public service. Are there too many forms to be filled in? Is there too much of the Civil Service mentality in the board? Can it look at simplifying its own managerial and procedural arrangements?

The board should also look at its infrastructure, though it is probably doing so on an ongoing basis. If one compares the board to equivalent private practices, there is an absence of backup. Office managers and other informational resources are taken for granted in most private offices but sufficient equivalent resources have not been deployed by the board. If that were done, lawyers would be freed up to get on with their core business. Through the absence of resources and infrastructure, the offices do not compare with what is taken for granted in progressive private firms, though that is no fault of those working for the board. If this is the case, it means that those working for the board must put up with second best in many cases.

Those depending on legal aid should not have to take second best, nor should the selfless lawyers who serve the public in this way, often at considerable financial sacrifice to themselves. They should not be asked to accept a level of backup that would not be acceptable in the private sector. I may be wrong, but my comments are based on discussions with people who have worked for the board and who want it to be in the strongest position possible to carry out its mandate. We see the danger signals regarding the deployment of resources and I wish to be helpful in asking whether the board needs to take a hard look at its own organisation. Generous resources are available from the State, and the best possible service for clients of the board should be given. At the same time, the Minister will fight to get extra resources for the necessary growth.

Lest I appear churlish, I compliment the Minister of State on a helpful speech which contained a lot of useful material. I have no doubt about her commitment and that of her Department to the growth of the board, which is a success story. It is our job to encourage the Government to ensure it remains so and that it grows.

Mr. O'Donovan

I welcome the Minister of State and compliment her on her excellent work, particularly regarding her responsibility for people with disabilities. She is doing an excellent job.

I agree with Senator Manning, by and large the Legal Aid Board has been a success. However, I am a legal practitioner in a peripheral area of rural Ireland and the board does not reach out to rural areas. For example, a person in Castletownbere, Schull or Cahirciveen with a problem — usually it is a woman having difficulties with her husband or partner — may need a solicitor urgently to apply for a protection order or barring order. More often than not she does not have a car, it is over 100 miles to Cork city and there may not be a bus service. That is the sort of difficulty I see. A place like Dunmanway is central to many towns in west Cork like Macroom, and it should have a free legal aid centre. This should be the case with more areas in rural Ireland.

Law practices in rural Ireland witness cases like this every week, most of which involve women with very little money who are in very difficult situations. Rather than going 60 or 70 miles to a free legal aid centre, they usually end up going to their family solicitors. More often than not, and I speak in praise of my colleagues, that case is taken on to help out a person whose family has been a client for some time. A woman may come to my office on Monday morning after a difficult weekend, but the next sitting of the district court is in Kinsale, 80 miles away, in district number 18. If she can get to Cork city, there may be problems with someone from the free legal aid centre going to meet her.

Although the free legal aid centre has been a success, it has not been so in remote areas of rural Ireland. A pilot scheme has been introduced to use private practitioners, and this is the route to take. If more free legal aid centres cannot be opened, then solicitors in remote areas such as Dingle, Westport and areas in Clare should be able to take on cases in a way that is similar to the criminal legal aid scheme for a basic fee. The board cannot reach every remote area. The pilot scheme is available in Dublin, where it is working reasonably well, as Senator Manning said, though there are delays. There are serious difficulties in remote areas and people experiencing problems, most of whom are women, should have access to a solicitor. This work is not very highly paid and some solicitors will not do it, but most offices have a solicitor who would gladly take the work on. If more legal aid centres cannot be provided in remote areas, this pilot programme should be expanded. I ask the Minister of State to examine this issue.

A huge amount of money has been pumped into the free legal aid system in the past two to three years. There was a 30 per cent increase in Exchequer funding for the scheme in 1998 over the previous year. That increase was needed because when the divorce legislation became law in February 1997, there was obviously a huge backlog of cases to be met. Whether we like it or not, a large number of relationships had broken up, and people happy in other relationships were waiting for the new legislation. I compliment the Minister on investing those funds in the scheme and urge him to do the same in the coming year. More staff should also be appointed.

A fault with the criminal legal aid system, particularly in the larger centres such as Dublin, Cork and Galway, is that there are four or five practitioners who may be earning £250,000 per annum. Judges appoint these lawyers and the Judiciary should examine this matter. Work should be assigned more equitably because if there is a huge workload people may not get the service they deserve. The initial free legal aid scheme commenced almost 20 years ago and now there are 222 people working full time for the scheme. Its budget is close to £10 million and it will probably exceed that next year. The Government must be complimented on its work in this regard.

Senator Manning is right that there was no family law in Ireland 20 years ago when this service began. It was introduced as an optional subject in 1975 when I was taking my degree in UCC and was made compulsory three or four years later. Therefore, although I am still in my early forties, when I was training to be a solicitor family law was a new concept. As Senator Manning pointed out, many people, especially older members of the Judiciary, were not up to speed with the changes in the law when this was thrust upon them in the 1980s and early 1990s.

The first Act to bring the area of family law into focus was the Family Home Protection Act, 1977, which prevented one spouse — usually the husband — from mortgaging or selling the family home over the head of the other spouse. There was a subsequent plethora of legislation — at least 12 or 15 Acts — covering various areas of family law.

I accept that the Legal Aid Board says this is not a free service. However, advice costs £4 and handling court cases costs £27. If one offered any private practitioner £4 for advice he would say goodbye. That is the reality of the situation. In essence, the service is very heavily subsidised, which I do not dispute. The specific guidelines put in place by the Legal Aid Board to compute who is entitled to aid are clearly laid out on page 42 of the report.

Over 90 per cent of the work of the Legal Aid Board involves family law cases — maintenance orders, barring orders, protection orders and so on — with the remainder involving areas such as landlord and tenant law. The basic minimum fee charged by any solicitor for handling a fairly straightforward judicial separation or divorce case is about £5,000. The fee will obviously be much higher for wealthy people with a great deal of property. People with lower incomes of £10,000 or £12,000 and liabilities such as mortgages would be left in limbo without the help of the Legal Aid Board. I compliment the board on all its efforts in this regard.

In 1997 some 2,175 persons sought the services of the board, particularly in regard to divorce and legal separation. That was a huge workload thrust on the board. The Minister and the Government must be complimented on reacting by providing a great deal of extra staff and funding. One could argue it was inadequate, but an Exchequer topup of 30 per cent on the previous year must be welcomed.

I agree with the Minister of State that we must look further at mediation in the area of family law. The lack of knowledge about the availability of mediation and counselling facilities is amazing. The use of such facilities can sometimes avoid trawling through the nitty gritty and airing of dirty linen in court in very contentious separation or divorce cases.

As I said earlier, I do not think the system is entirely fair. I hope my criticisms will be seen as constructive rather than just nit-picking. Some 85 or 90 per cent of family law cases are brought by the female partner. For example, a female partner or wife in rural Ireland whose relationship has broken down and who is living with a partner with whom she cannot get on is under terrible psychological pressure and suffers constant crises at home. She is advised that she will qualify for help from the free legal advice centre. In my experience, however, it takes about six weeks to get an appointment, unless it is an emergency, despite the fact that this person could be living under desperate emotionally stressful conditions. It takes a further six or eight weeks after getting an appointment to be assessed for a free legal aid certificate, which is a considerable delay. The next step is the issuing of proceedings. In reality, it takes up to three years to get a judicial separation or divorce if one has to rely on free legal aid.

Some women are forced to borrow £4,000 or £5,000 from friends or credit unions in order to go the quick route, which is regrettable. In many instances the male partner decides he can put up with the hassle and that he will stick it out. He ends up getting the full help of the Legal Aid Board while his partner has to pay for it herself.

Another inequity occurs where a man who has been barred from the home somehow gains entry to the home and terrifies his wife or partner and perhaps their children. She flees the house, raises the alert in the Garda station and he is arrested. When he is brought from custody the next day to face the district justice for breach of a barring or protection order he is immediately entitled to the criminal free legal aid system because he is likely to go to jail, while his partner may have to travel 60 or 70 miles to get help. These aspects must be looked at.

In case I may appear to be critical of the Legal Aid Board, I wish to say quite emphatically that it has done extraordinary work since its inception in 1979. However, as someone from rural Ireland, I feel it has not reached the furthest parts of our society. There are similar problems to those of Dublin in places such as Cork, Schull, Cahirciveen, Dingle, Westport and Ballina. The two possible solutions are to create more free legal aid centres in peripheral areas — small offices which would open for two or three days a week — or the better option would be to extend the private practitioner scheme used in Dublin. I do not know why it is used in Dublin, which seems to have everything going for it. Under this scheme private practitioners can receive some compensation — probably not the going rate — for giving advice and initiating proceedings. That must be looked at seriously for parts of rural Ireland, otherwise, there will be a major flaw in the facilities of the board.

Having said that, I congratulate the board on producing a very succinct, concise, colourful and imaginative report which is easily read. I also laud the Minister of State on her contribution today.

Mr. Norris

I wish to share my time with Senator Henry.

An Leas-Chathaoirleach

Is that agreed? Agreed.

Mr. Norris

I welcome the Minister of State to the House. She was a valued colleague when we fought side by side on the Joint Oireachtas Committee on Women's Rights. Anything I say should not be taken as a criticism of this Minister. There is a problem of scarce resources as we all know. I did battle here, not with any malice or in a partisan fashion, with my dear old friend Mervyn Taylor on this very issue. I remember fighting to try to get the remit of the Legal Aid Board extended to cover other cases which were excluded. The reason he gave was that there were not enough resources but he gave undertakings that the Government and Department would make the best possible effort to ensure that the cases which came before the board were effectively serviced.

I note from the report that the Legal Aid Board indicates that there is a substantial increase in the number of cases. This is worrying because they are very human situations. When one gets to law, it is usually the end of a rather tragic series of events which have a personal dimension. Waiting or hanging around is an additional strain which we should try to keep to a minimum.

My information is that the situation is far worse than that indicated in the Legal Aid Board's report for 1997. The situation has become dramatically worse since the figures were compiled. I refer to an article in the Sunday Tribune of 25 October 1998, indicating a 300 per cent increase in the waiting period in many of the areas serviced by the board. Since June 1997, the period covered by this report, it has increased 300 per cent, so the delays are much worse. The worst hit area is the South Mall in Cork where people seeking legal aid face a wait of 19.5 months compared with five and a half months in the previous year. Wicklow is also badly hit where the waiting period is 19 months whereas up to June 1997 it was ten months only. In Galway the waiting period is 17.5 months compared to four and a half months in June 1997. The situation in Newbridge is similar.

Of the 30 legal aid centres around the country, ten have waiting lists of over ten months and a further six centres have a delay of over six months compared to a national average of four months last year. It is a real crisis. The Legal Aid Board indicates that it is changes — welcome changes I may say — in family law which have greatly increased the need. It attributes it to the domestic violence Act, 1996, and the Family Law (Divorce) Act, 1996. I have a table with all the increases listed. I have given a representative selection, so I will not place all the statistics on the record of the House.

There is, however, a further dimension to this issue. I have been in touch with the Free Legal Aid Advice Centre. It is interesting that the Legal Aid Board indicates that this massive increase is due to family law situations and that the over-whelming burden of its cases are in this area. If it is true, as the board suggests, that 96 per cent of court cases and 90 per cent of legal advice cases are in the family area, why has this happened? Why is there this enormous preponderance because it leads to a type of distortion? Is the Legal Aid Board concerned about this curious imbalance in its case work and what are the proposals to redress it?

Everybody accepts there is a high take up of services in the area of family law. However, the experience of FLAC suggests there is an equally heavy take up in other areas and a similar demand for advice, assistance and information. FLAC runs a telephone service, an information referral line, which shows a different picture. Each year the statistics from the service FLAC runs show that family law queries make up 25 per cent only of calls and the remaining areas comprise employment, housing, consumer issues, death, personal injury and social welfare law. The imbalance is not reflected in the report of the board.

One of the reasons, as the Minister knows well, is that many of these categories are excluded from the remit of the board, and this is the area in which we argued with Mervyn Taylor. I remember him saying that the resources simply were not there. I tabled an amendment which was passed but the Minister deleted it in the Dáil. He was afraid the whole system would collapse. It shows there is a large demand if we are really talking about free legal aid being available to people in critical areas. This means people with cases under the Unfair Dismissals Act, the Maternity Protection of Employees Act, the Payment of Wages Act or the Redundancy Payments Act cannot get legal aid regardless of their income level or the merits of their case. These are the areas in which the boot really pinches.

Similarly, a person whose social welfare payment has been cut cannot get legal aid and the claim is brought before a social welfare appeals officer. These cases are taken to vindicate income generating rights and those are pretty fundamental to the people's survival and welfare. The right to redundancy and welfare payments are the type of rights most relevant to those on low incomes or living on the threshold of poverty.

I know it has been argued that these tribunals are designed to be informal dispute resolution mechanisms but the experience of FLAC suggests that with developments in law, particularly European law, increasingly cases brought before these tribunals involve complex issues of law which the ordinary person might not understand and for which they would need proper legal advice to be able to deal with them. The action taken by more than 70,000 married women for arrears in social welfare due for the period 1984 to 1986 is a good example of the legalistic nature of many of these claims with which the average person would not be able to deal.

Another reason for the imbalance in favour of family law is that the board does not publicise its service and many people remain unaware of it. The board should have a programme of public advertising so that people are aware of their entitlements. I recognise this would gum up the system even more but if people, including the most vulnerable, are entitled to a service, we should ensure they know they are entitled to it.

The waiting time is really pretty chronic and difficult at the moment. This issue was addressed by Mervyn Taylor when he introduced the Family Law (Divorce) Act. He said resources for legal aid would be increased to cope with the additional load. Obviously, whatever the good intentions, not enough resources have been made available as yet.

There are about 5,000 solicitors in practice at the moment and the number employed by the board is 82. The number entitled to the use of this service is 870,000. Some 82 solicitors are expected to service the needs of one third of the contentious population while nearly 5,000 private solicitors serve the remainder.

An important point is the extension of the use of private practitioners. However, there is one important caveat here which is that the use of private practitioners for District Court applications only should be discontinued. The reason is that if a client is appointed a solicitor, they should be able to have that solicitor right through to the conclusion of the case and not have to change horse mid-stream. It is terribly confusing and damaging to a case if a private solicitor makes the application but the minute the case is about to go through the court system, there is a change of solicitor. That is unfair. The means test was established in August 1995 but the criteria have not yet been reviewed. It is obvious that four years down the line they should be reviewed again and brought into line.

Dr. Henry

I thank Senator Norris for sharing his time. I congratulate the Minister on her speech. Like other Senators, I pay tribute to Mervyn Taylor for what he did for the free legal aid scheme. Huge improvements were made to the scheme during his time in office and I am sure the Minister will do what she can also. The delays are very worrying and Senator Norris rightly pointed out that they are apparently worse than recognised in the report. In terms of the delays mentioned in the report, of the 2,175 people who came to the service in 1997 regarding judicial separations and divorce, 957 were still on the waiting list at the end of the year. As Senator Manning pointed out, many of these cases are very traumatic and emotional and such long delays are very difficult for those involved.

I support the suggestion of Senators O'Donovan, Manning and Norris that more use should be made of private practitioners. It might even be cost effective. It would be worth considering the cost of the private scheme and examining whether private practitioners, following training, could be appointed as satellite officers in areas where there is no legal aid office.

A great number of the cases mentioned in the report involved drugs, drink and violence. These are extremely serious, especially where the care of children is involved. As I have requested previously, I ask the Minister to consider whether something can be done about getting independent reports for the courts on family law cases. Several Acts, including the Family Law (Divorce) Act, other family law Acts and the Child Care Act, state that the Judiciary should be in a position to ask for independent reports on family cases. The Probation and Welfare Service prepared reports on a grace and favour basis up to two years ago. It had to stop because of the increase in the number of criminal cases with which it had to deal. Independent reports could be prepared by the Probation and Welfare Service or the health boards. However, they are both overworked.

I realise the social services are very much overworked but when one considers the number of times cases must go to court, part of the problem for the Legal Aid Board is that it does not have enough back-up. Cases go to court without independent assessments and I am sure many judges would prefer to have these reports rather than, as some of them have done, visit houses to see the family circumstances for themselves or interview children in their chambers. This is a job for the professionals.

It is most important that there are sufficient social workers to deal with the cases which come to the free legal aid scheme. In some cases, lack of social workers may mean that the courts have more work. For example, a serious case is mentioned in the report where a couple separated. The wife had an addiction problem and the husband had a previous problem, although he had been rehabilitated. There already had been problems dealing with this couple and when an emergency care order was sought for a child, a student social worker became involved. Further communication problems arose which resulted in a confrontation between the father and the social workers. An assault took place and, as a result, the health board issued further proceedings.

Was somebody sent out on that case who was not capable of dealing with it? In the heel of the hunt, either the father or the mother may have faced a criminal charge. I know resources are scarce but it is most important in these cases, each of which appears more serious than the next, to try to ensure that there is proper professional help. There is more to social work than going out, standing about and listening. They must be able to make informed judgments and decide what best can be done for the family. In the case I outlined, which is mentioned on page 14 of the Legal Aid Board report, there were 15 different applications to the court. This wasted a great deal of time and effort. If a social worker had been available initially, there might have been a better outcome.

The board points to the need for shelter for people who must flee violent homes. I realise the centres try to do what they can in emergencies, but violence, drugs and drink cause terrible disruption in many families. While mediation is the favoured option, unfortunately, the adversarial system in the courts too often wins out. As we are aware, there is a waiting list for free legal aid and then to get into the courts. I congratulate the Minister of State on her efforts and I hope she continues to build on the work of the former Minister, Mervyn Taylor, which was mentioned by Senator Manning and Senator Norris.

Miss Quill

I commend the Minister of State on the nature and quality of her work since her appointment. It has been most impressive. She has taken a hands on and focused approach to her brief. I have watched her with much admiration and I wish her luck in the future.

I commend the Legal Aid Board on its work and the production of this admirable report. It is a valuable yearly document for Members to have at their disposal. It gives us an opportunity to assess how the laws framed in the Houses of the Oireachtas and provisions made in budgets are working in practice. It provides us with the chance to consider whether laws are having the intended result and if not, why not. These issues must be monitored in terms of what progress is being made in all areas at an equal pace. The provision of a well worked out scientific report of this nature is extremely valuable. I commend the board on the report and its work.

We have been slow with regard to social legislation and making provisions in that regard. It is only in recent times that we, as legislators, have addressed the needs in this area. I commend former Minister, Mervyn Taylor, for his input. I was a Member of the Dáil at the time and I saw the painstaking nature of his work. He is no longer a Member of the other House, but I want him to know that his work is valued and appreciated and is being developed by a worthy successor.

As other speakers mentioned, the jurisdiction of the Legal Aid Board relates mainly to family law. Many of the cases dealt with by the board are very harrowing. One of the aspects which struck me strongly when I read the report was the degree of delay. The delays have built up gradually and constantly over the years. Senator Norris mentioned figures which are different from those in the report. However, I will mention the statistics in it. There are two centres in Cork city. In Pope's Quay in 1995 and 1996, the average delay was four and a half months but in 1997 it was six months. In the South Mall the duration of delay in 1995 was three months, but it more than doubled in the two following years. The average delay is now seven months.

The reason for the delay is indicated in the report. Despite the fact that additional provisions have been made by this and the previous Government, the extent of the demand has outstripped the level of provision. This element more than any other should be addressed as a matter of urgency. An attempt must be made to cut down on the delays because, unquestionably, they add to the difficulties. It is difficult for those of us who have been lucky in life to envisage fully the degree of misery, suffering and raw torture in some cases that is inflicted on victims of domestic violence. It is difficult for us to empathise fully with such victims. The impact of domestic violence on women in particular is horrendous. Any undue delay which would add to that misery should be minimised by the service providers. The Minister of State should make it a priority to ensure that the duration of the waiting period for legal aid should be at a minimum. When incidents of violence occur and it becomes known to the perpetrator of the violence that the victim is seeking legal aid, a new level of viciousness may creep in. There must not be too great a delay in waiting for legal aid.

I agree with Senator O'Donovan that the services of the board do not reach out to certain geographic areas. An isolated case in Castlegregory is as deserving of a service as a case in Castleknock. It is not practical to have a legal aid centre in every small population centre. The way to reach out to those in remote areas who need a service is to extend the private practice system which is working in Dublin. I ask the Minister of State to ensure that approach is taken.

Senator Manning spoke at length about the administrative and secretarial back-up services as opposed to the provision of solicitors. He expressed his fears that this aspect of the service is not funded as well as it ought to be. I understand that to be the case from my contacts with people in certain key centres. These services should be examined with a view to upgrading the standard of service provided.

In all cases the first person a victim meets in the legal aid centre is the secretary, invariably a woman, at the reception desk. Based on the quality of that first encounter the victim may have the confidence to proceed. It is very important that provision is made to enable continuity of care at that level. People who are appointed in a secretarial capacity should be remunerated to the extent that they will continue to work in that capacity. Senator Manning made the point cogently and I repeat it to endorse his sentiments. If the first point of contact gives confidence to a victim that person will proceed. The Minister of State should examine this aspect closely.

I was pleased with the Minister of State's statement, particularly the emphasis she put on mediation services. If and where possible we must try to introduce a culture of conflict resolution. Cases involving families involve people who had feelings for each other at some time. It must be a shortfall of our education system that young men in particular are so poorly equipped to communicate their needs or feelings and that, often, their only means of communication is to draw a swipe or deliver an insult. Without wishing to stray too far from the subject, one of the most uplifting experiences we have had this year was to witness the manner in which Mr. George Mitchell dealt with people who had been in open conflict for generations — the calm and cool manner in which he got them to sit together and to listen to each other's views.

Good mediation should be tried in many cases as the first approach. If it fails, by all means let a case proceed to the courts. However, good family mediation should be tried and we should aim to put good family mediation services in place.

In the other House I dealt with issues of juvenile justice and I did a detailed study of the way in which the children's panels work in Scotland. These are special panels composed mainly of lay people, often successful parents, and some professional expertise and they are the first port of call for children who may be in trouble with the law. They work very effectively. They are a variant of the mediation procedure.

There is a group of women in Cork who work in the community and call themselves "Mná Feasa". The name derives from Irish mythology when Fionn MacCumhaill's mother in preparing him for life sent him out to be fostered by one of the mná feasa or wise women — women who had learned the skills of life from the university of life. Many of the members of the group in Cork have been the victims of domestic violence and they assist, advise and support one another, especially in the process of vindicating of their rights.

However, the vindication of rights is only one step in the process. There is a great need to heal the hurt and psychological damage and the work of this group is very encouraging because they assist one another so that women whose lives have been broken by violence can, with the proper level of support and advice, begin to put their lives back together. There is scope for the Minister of State to encourage and fund such groups. Cases of family law involve human misery and much pain can be averted before cases go to court.

However, when cases go to court it is important that the services of the best available solicitors schooled in family law are available to the victims. That is what the Legal Aid Board has been doing. It has been extending its services in a satisfactory and professional way. It has taken on a large additional workload since the enactment of domestic violence legislation in 1996 and divorce legislation in 1997. The likelihood is that its work will continue to grow.

I congratulate the board for the manner in which it discharges its duty and I wish it well in the future. I also wish the Minister of State well in her work to ensure that the board's additional needs for funding are met.

Ms Ormonde

There is little for me to say at this stage; it has all been said. I welcome the Minister and congratulate her on all her fine work to date. I congratulate her in particular on her grasp of her brief. She does her homework well and it is comfortable to work with her. I am always happy to speak on any of the areas under her remit because they are worthwhile. The Minister made a fine speech. I will take it away with me to read again when I have more time to assimilate the various points she raised.

I also congratulate the board on this fine document. It is one which I will read again. This afternoon I picked up a great deal of information from listening to the statements and I feel I am already knowledgable about the board. The reason I say that is I was not knowledgeable when I decided to speak on this matter. Perhaps that is from where we are coming. We are not knowledgeable because we are comfortable people. The people who are most vulnerable are those who do not know where to find this free legal aid service.

It is only in the past couple of years that the Free Legal Aid Board's services have become visible. It is a great success story and it is all contained in the report. I know that now. However, as a guidance counsellor by profession, I knew little about the services of the Free Legal Aid Board. I should have known about them because there would have been many times when I dealt with the vulnerable children of parents whose family had broken down — I would have detected it through the various systems in the school. That area, between the schools, the guidance counsellors and the family, is where we could deliver a tighter service. I welcome the fact that the Minister has set up a committee which is co-ordinating the mediation services and reorganising the board but it could be opened up further.

I welcome the funding also. My good friend and colleague, Senator Manning, quipped that perhaps it was our good friend, Mervyn Taylor, the then Minister for Equality and Law Reform, who spearheaded it. Although he was there, I would like to think it was led by a Fianna Fáil Government.

I also acknowledge the increased funding in 1997-8, which acknowledges the passing of the divorce Act, the Domestic Violence Act, the breakdown of marriages and the vulnerability of young people in society. We need that money. In fact, I will be looking for more. We cannot have enough in an area where there is such vulnerability and sociological change. The definition of family must be looked at, for instance. Unless there are the background services of mediation, the Free Legal Aid Board and staff to acknowledge the breakdown in society, then we are not achieving anything with this board. While I acknowledge the success of the board, the fact is that although it has received a great deal of funding and the Minister has increased the number of staff, I still feel what is done will never be enough considering the kind of support which is needed.

Perhaps the Minister could send a leaflet to every guidance counsellor to outline the service which is available in their areas. It would be information for the library. A parent might come to the guidance counsellor in the school, probably the first port of call because he or she might not know where else to go, through the teachers, the guidance counsellor and the home/school link, this might be the best way to help. This might be the way to reach out to inform people of the services available to help the most vulnerable in society. That is the major area of concern.

With regard to reorganisation, I support Senator Manning's point about clerical staff. It is so important that the board's solicitors are good at their job. There is such a thing as horses for courses. There can be good politicians and bad politicians and good teachers and bad teachers. There can be bad solicitors in the sense that technically they could be good but they would not have that sensitivity to reach out. It is terribly important that one gets the right person to deal with the vulnerable. When somebody comes into the office, the right kind of solicitor with a feel for what he or she is doing, might not be available. Therefore, the criteria for a family solicitor are also important to bear in mind.

I welcome the report and I will have a keen interest in future worthwhile reports. The Legal Aid Board is a success story. The Minister should spread knowledge of the service so that it reaches people who might be able to help the solicitors, those who provide backup services and the mediation services which the Minister will set up to link in with this board, etc. This would create a co-ordinated service for those most vulnerable.

Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace)

I thank the Senators for their constructive approach to today's statements. I greatly appreciate their support of the Free Legal Aid Board, particularly the positive remarks with regard to the success stories around the board, with which we would all identify.

A number of issues were raised and I will attempt to cover as many of them as I can. Senator Manning made a point, to which Senator Ormonde referred, about the developments of the board from 1992. My intention in mentioning that was merely to point to the time when the expansion and development of the board began. I had no intention of denigrating any contribution of other colleagues. I wanted to say that prior to 1992 when there were 16 law centres, that number has almost doubled today. The expansion to which we all referred needs to continue. A great deal of progress has been made in that period.

Senators Manning, Quill and Ormonde referred to the importance of staff in dealing with waiting times. This is definitely a key issue which needs to be continually looked at. The announcement made in July last by Minister O'Donoghue, to which I referred, was specifically around this area of posts which play such an important part. The Minister approved 25 additional posts for the Free Legal Aid Board of which 17 are for the law centres, including five solicitor posts, as well as making six temporary staff in the law centres permanent, three of whom were relief solicitors and three were clerical staff.

Senators Manning, Ormonde and Quill, in particular, referred to the importance of support staff. Senator Quill made the point that these are often the first people with whom somebody coming to the law centres comes in contact.

With regard to the numbers around the country, there are 89 solicitors and 127 support staff. I hope those figures and the increase in the number of positions shows the seriousness with which the board views the importance of having such support staff.

Senator Quill drew attention to the waiting times at the two Cork law centres. I am pleased to be able to state that both centres are to be assigned an extra solicitor as a result of the staffing posts sanctioned by the Minister. I hope that is of assistance.

Senator O'Donovan and Senator Henry mentioned the stress and trauma of having to wait for the board to provide assistance. As I said, the board operates a priority system. If a woman is in physical danger, which was Senator Henry's concern, she would receive priority. Unfortunately, this cannot be done in all cases although there is a prioritising in the board's work. Senator Henry also asked if I could provide independent reports on family law cases. This is outside the remit of the Legal Aid Board but I will raise the matter with my colleague.

Senator Quill was concerned about the extent to which demand will outstrip the additional resources. Demand is increasing at the same time as resources are increasing. This point was also raised by Senator Norris who said that waiting times have increased by 300 per cent. The waiting times increased in 1998 but I hope the measures currently being taken by the board, the increased grant aid in recent years and the recent sanction of extra staff posts will have the necessary impact on the waiting times and alleviate this pressing problem.

Senator Quill and Senator O'Donovan referred to the private practitioner pilot project in rural areas. It has operated in the Dublin area since April 1994 and the board expects to be able to extend the scheme nationwide in the near future. Senator Norris mentioned the provision by the board of legal aid to those taking cases before tribunals. The purpose of tribunals is to provide alternative forms of dispute resolution that are cheaper, quicker, more accessible and less formal than the courts.

It was never the intention that labour tribunals should be flooded with legal representation, making them more formal and the 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 when that tribunal was established. Legal representation at social welfare appeals tribunals has not increased to the same extent.

A major problem, however, is how legal representation could be contained if legal aid were available as a matter of course. This is one of the reasons the Seanad reversed an amendment it had made on Committee Stage to the Civil Legal Aid Act, 1995. No Government could accept a situation where a good deal of the Legal Aid Board's resources, 95 per cent of which are currently directed to family law cases, should at once be directed to legal representation before the Employment Appeals Tribunal and the social welfare appeals tribunals. This issue was debated at length in the House but it is no harm to explain the reasons for the decision.

Many other important issues, such as family law, the cost of the board, clients of the Legal Aid Board, European law and mediation services, were raised and I have taken note of the Senators' comments. The Department continues to monitor the working of the board on a monthly basis to ensure it is fulfilling its mandate under the Civil Legal Aid Act, 1995.

I thank Senators for their genuine interest in this subject and for the recognition they accorded to the board's successes, in addition to the complications and difficulties that have arisen on foot of the additional legislation in this area. It is positive legislation and it is heartening to see the dramatic effects it has had on the work of the Legal Aid Board.

I thank Senators for their comments and I will take on board the important points they raised.

An Cathaoirleach

When is it proposed to sit again?

Ms Ormonde

At 10.30 tomorrow morning.