Amendment No. 23 in the name of Deputy Keogh and amendment No. 24 in the name of Deputy Woods are out of order as they involve a potential charge on the Revenue.
SECTION 27.
Amendments Nos. 23 and 24 not moved.
Question proposed: "That section 27 stand part of the Bill".
This section deals with legal aid. My concerns about the section were addressed in amendment No. 24. We were trying to make provision for tribunals. Amendment No. 24 reads:
In page 16 ... to delete paragraph (b) and substitute the following ....
The Deputy may only discuss the amendment in a general way.
I will only discuss it in a general way.
For instance, amendment No. 24 referred to them being "conducted before the Employment Appeals Tribunal where the applicant is not entitled to assistance from a trade union". There are situations in which the applicant for legal aid would not have entitlements and would not be covered otherwise.
We have difficulty with this. First, we want to cover exceptional situations and we do not want to get the board involved in all the routine work and details. A great deal can be dealt with by existing agencies or by good administration and a good appeals system with the administration.
For instance, in the case of the Employment Appeals Tribunal cases arise where a person has no other means of representation at an appeal. I accept these are the exceptional cases but, as a result, there would be little cost involved. I realise it is difficult to specify clearly what should take place here but it is an attempt on our part to get to that position without putting a huge cost on the Minister, his Department or the board.
The other tribunals we had included here when resources would become available are the social welfare tribunals. Again, I am happy with the way in which the social welfare side operates. I set up an appeals system in the Department of Social Welfare, which successfully deals with many thousands of appeals. I accept there are exceptional cases where it is necessary to bring an issue further and have it fully tested. Such cases will arise from these particular kinds of appeals. We wanted to see this section amended to ensure there is a provision to cover such situations. I appreciate it would involve a charge on the Exchequer. We intended to limit and control the provision of this type of aid. The objective is to try to arrive at a situation where tribunals can be included without opening the floodgates on cost.
Will the Minister look at this further before Report Stage to see whether the issue can be dealt with before the Bill is passed? It is an important issue and people are concerned about this aspect of the Bill. If we can make provision for it and control it sufficiently, we should do so. Our amendments are not in order for that reason and they cannot be moved. Otherwise, the section is acceptable. We wanted to go a little further and make a provision for tribunals.
Some Deputies have said that the Minister keeps referring to the previous administration. If I remember correctly, there was a commitment in the Fianna Fáil-Labour Programme for Government to include tribunals.
There was a commitment to examine the matter.
In examining that situation it may have become difficult to specify how it would be done. I can understand how that might happen. Will the Minister look at this issue again before Report Stage? We should try to find a way to make provision for tribunals in the more exceptional cases.
Unfortunately, the amendments, which I broadly support, have been ruled out of order. I spoke about this issue on Second Stage, particularly in relation to the Employment Appeals Tribunal. I have had experience of that tribunal on one or two occasions. One always finds a situation where the employer side is well represented. They may have top class legal representation. Often even the trades unions cannot measure up to these people.
Certainly, there is a case for those who are not represented by trades unions. We cannot have a situation where a person in a small firm, who is in total fear of their employer, is sacked, takes the case to the Employment Appeals Tribunal and must, give evidence, speak on his or her own behalf and come up against the same employer whom they fear. With the best will in the world, an individual who attends the tribunal and is not in fear of an employer would probably be unable to conduct a proper defence. Often they will be unable to conduct any defence. They are being discriminated against in these situations.
Some of the smaller trades unions do not have the wherewithal at local level to provide proper representation at the Employment Appeals Tribunal. It can be traumatic for the people involved. It is important that this area be included under the Civil Legal Aid Board.
I note the reference to social welfare appeals, particularly in Deputy Keogh's amendment. Obviously, ideally they would be included too but I can understand why they cannot be included at present. The provisions of the Bill are adequate to meet the need, except in some exceptional cases, but something must be done in relation to the Employment Appeals Tribunal. Like Deputy Woods, I ask the Minister to consider this issue in the context of Report Stage.
The Minister referred to these matters on Second Stage. I understand why the amendments cannot be taken. We all hope to produce the best possible legislation but there is a great deal of concern about the Employment Appeals Tribunal, as the Minister mentioned on Second Stage. He said he was reviewing the position in regard to legal aid in consultation with the Minister for Enterprise and Employment and that if a structured approach could be developed it may be possible to extend legal aid to certain cases, depending on how the current development programme of legal aid works out and on the Exchequer position. Has that progressed in any way?
One cannot reasonably expect full legal aid coverage for this. The Minister occasionally becomes defensive and outlines what he has done but everyone acknowledges his work. Can he say whether something has been devised in the meantime in consultation with the Minister for Enteprise and Employment or when it might be possible to tell us how far he can extend legal aid?
I recognise that the amendments are out of order. The section states legal aid is to be provided for cases conducted in the District Court, the Circuit Court, the High Court or the Supreme Court. What about the European Court of Justice, to which Irish citizens can have ultimate recourse?
On the question of tribunals, the Pringle report stated cases should not be excluded from legal aid by virtue of category, it whould depend on the circumstances of each case. I read the Minister's Second Stage speech and the Committee Stage debate in the Seanad. He is considering how or in what circumstances the civil legal aid system might be extended to those tribunals and some facts might be of assistance to him.
He said that 5,710 cases were considered by the Employment Appeals Tribunal in 1993, of which 3,480 were heard under the Minimum Notice and Terms of Employment Act, 1973. The question in those cases was whether the claimant was entitled to notice of his or her dismissal, which is a question of fact. Surely some mechanism can be found whereby cases which do not involve matters of law and solely involve matters of fact could be excluded on their merits by the local law centre — perhaps that could be built into the regulations.
Of cases before the Employment Appeals Tribunal it is generally those concerned with unfair dismissal which give rise to legal complexities and argument; there are a number of complexities in the legislation, such as deciding when an undertaking has been transferred, etc., so as to provide continuity. According to my figures, of the 5,710 cases heard in 1993 by the Employment Appeals Tribunal, 936 dealt with unfair dismissals and the applicant or client was legally represented in only 439 of those — one has to presume the client could afford legal representation in those cases.
There should be a mechanism where cases not involving a complex matter of law should be excluded on their merits because where a matter of law is involved, the employer will almost invariably be represented by senior counsel, while as Deputy Kenneally said the employee is represented by a trade union official. With all due respect to those officials they can hardly be expected to argue the law with leading senior counsel. This is unequal and it is the antithesis of legal justice that where a point of law is involved a trade union official, social worker or community worker must argue with a leading barrister.
The vast majority of cases which come before the social welfare appeals tribunal are decided without reference to an oral hearing because the issue is almost invariably one of fact.
They are all essentially questions of fact.
Yes but there are a number of legal concepts in the social welfare code, such as cohabitation and desertion and on rare occasions there may be a question of legal interpretation in an oral hearing. However, anything other than that could be excluded on its merits by the local law centre and the Minister should consider building that into regulations. I wish him the best in his considerations and I hope he arrives at a positive conclusion. However, if we want equal justice and an equality of treatment in the context of the Employment Appeals Tribunal and especially the social welfare appeals tribunal, it is not fair that an unfortunate person who is claiming his livelihood should have to argue a legal point with a social welfare officer who is an expert on it because he deals with it every day.
I ask the Minister to consider this seriously and to make progress as quickly as he can. A good case can be made for extending the civil legal aid system to those tribunals in a way which will not be too costly for the Exchequer. It is only in an infinitesimal number of social welfare cases that there will be a legal debate in an oral hearing.
I would have supported these amendments but as they are out of order that does not arise. I will not repeat what has been said because Deputy O'Dea has made the points I would have made. Does the Minister accept there are cases which require legal representation arising from both these tribunals and that in instances where that representation is not provided, an injustice is done? Does he accept there is an inequality of representation involved because of the absence of access to free legal aid? I am sure he does accept that because he has been involved in the area longer than I have. I encountered cases under both tribunals where the person would have received justice if he had been properly represented.
If he accepts that, is it his intention to extend the scope of this Bill at some stage? Can he assure us that when the backlog of cases within the scope of the Bill is dealt with, he will extend it? It does not have to be extended to every case because, as other speakers said, regulations can be made to limit the types of cases which can get legal representation to those which specifically need and require it.
It would be extremely dificult to work out regulations as specific as that. As Deputy O'Dea knows, one cannot truly distinguish matters of fact and of law, they are inextricably bound together. To sift out cases based on fact and on law at that early stage would not be possible. I appreciate the measured manner in which the amendments were proposed — although they were out of order — and the reasonable comments made by Deputy Woods and other Opposition Deputies.
As I said in the Seanad, I would like to see some advance made in this regard but I would be misleading the committee if I said that would be possible on Report Stage or in the short term because it will not. I am hopeful that at a later stage of the evolution of the development process of the free legal aid service something could be done. I inserted clause 27 (2) (b) so that when the appropriate gearing up and resources of the service have reached that point I will be able, by order, without the necessity for an amending Act, to extend the service.
While a huge expansion and extension of the service has been accomplished within the last two or three years, we have not yet reached the point where there is spare capacity that could be filled by an additional category of work. Apart from that, there is another matter to which I referred in the Seanad. I have to keep in mind that there are two aspects, one of which certainly will and the other — if it comes to pass — will also increase family law work which is the primary function of the law centres at the moment. The first point is that I am in the process of increasing the financial accessibility limits to the service. In other words, I am substantially increasing the limit of financial resources within which a person must be to get legal aid. That will be in force within the week and will result in an increase in the workload of all law centres because an appreciable number of people who have not qualified until now will do so because of the increased extensions.
The other factor, which is uncertain, is the divorce referendum. However, if the referendum is passed there will quite clearly be an appreciable increase in work on the divorce side, certainly for the first couple of years until that pentup demand for divorce — which is there in large numbers — has been disposed of and levels out.
I have to look at both those factors — one a certainty and the other a probability — before deciding what spare capacity there will be. Hopefully, in the years ahead it will be possible to extend the service even further. When that point comes, nobody would be more pleased than myself to increase access to the service. It can be done in different ways, assuming we reach the point in a year or so that we are in a position to extend or expand. One way would be to look at some form of access to tribunals that is not there now.
Another way would be to relax the restrictions in section 28 (8) where a number of categories of work are excluded. A third way would be to use increased resources to further extend financial accessibility limits for the family law area. It would be a matter of determining the balance of priorities between those items. However, the suggestions put forward are balanced and I am not unsympathetic to the thrust of the general views expressed.
Deputy Woods possibly knows more about the operations of the social welfare appeals system than I do, but I think there is a system under which a person going to an oral hearing can bring their solicitor. If they do, a fee is paid by the Department of Social Welfare quite apart from anything to do with civil legal aid.
It is too small a fee.
It may be small but it is a fee nonetheless and does not involve a major operation either. It may not be all that widely known but the scheme is there. Those appeals are of a very different category from the Employment Appeals Tribunal where, on occasion, heavyweight legal teams could be on the other side. There is no legal team on the other side there, although there is a social welfare officer who only hears the case. If one was to import legal representation by the appellant one would be into a situation where the Department might be constrained upon to do the same and that would escalate.
In summation, I look forward to the time — depending on budgetary considerations when some level of expansion to the scheme is possible along the three lines I indicated. I am sympathetic to the views put forward.
Question put and agreed to.