I move amendment No. 25:
In page 16, subsection (1), to delete lines 23 and 24 and substitute the following:
"28.—(1) A person shall not be granted legal aid unless the person is granted a legal aid certificate under this section in".
This is purely a technical amendment.
Amendment No. 26 in the name of Deputy Woods is out of order.
I would like to know why amendment No. 26 was ruled out of order. Originally, we were told that it was on a financial basis. There is too much detail in the section and the aim of the amendment was to shorten it and transfer the detail to regulations. This also allows for easier changing, if necessary with future experience, especially if tribunals come within the scope of the Act. That is all I was doing in amendment No. 26. I do not know why someone came down with the great big mallet to say that it would involve a charge on the Revenue. I do not know where the money is, to tell you the truth. You might have a note of the financial aspect, Chairman.
Amendments Nos. 26 and 28, in the name of Deputy Woods, remove from the Bill certain detailed criteria for the granting or refusal by the Legal Aid Board of legal aid certificates in favour of those criteria being set out in ministerial regulations. As it cannot be said with certainty that any regulations which the Minister might make for this purpose would be as restrictive as those set out in the Bill, and particularly in view of that element of the amendment which removes the criteria currently set out in the Bill, the amendment could have the effect of altering the criteria for eligibility for free legal aid thereby imposing a potential charge on the Revenue. I do not want a discussion on it, please.
Somebody does not trust the Minister. In fairness, it would have been a better system in public administration terms. The only reason I tabled the amendment was to allow for these within the regulations. I got clobbered for trying to help the Minister, but I think they want to clobber both the Minister and myself.
I move amendment No. 29:
In page 17, subsection (4), lines 16 to 20, to delete paragraph (c).
Amendment No. 29 was to delete the section which provided that the cost to the applicant of engaging a solicitor and, where necessary, a barrister to represent him or her in the proceedings without legal aid would be less than the contribution payable by him or her under section 29 and regulations, if any, under section 37. Subsection (4) is covered by the proposed amendment to subsection (2). If unsuccessful, the amendment here would delete paragraph (c). The contribution payable under section 29 is a sum not exceeding the costs to the board of providing legal services. It seems that a person can only be refused when the board's costs exceed the cost to the individual of getting a solicitor privately. How could this happen? Are the board's costs out of line with private practice and how would the board know this in an individual case? The amendment is not of any great consequence but it raises the issue as to whether the board really knows and whether it is out of line in relation to private practice. Will the Minister comment on that?
I accept that it would rarely occur but it might on occasion. Private solicitors are sometimes prepared to take a case on a no foal, no fee basis so if that did arise, it is provided for. I agree it would rarely happen.
Amendment No. 30 in the name of Deputy Woods, 31 is an alternative so the two can be taken together. Is that agreed? Agreed.
I move amendment No. 30:
In page 17, lines 28 to 45, to delete subsection (5).
Subsection (5) is also covered by the amendment of subsection (2). Why is it necessary to specify the international agreements mentioned in paragraphs (b) and (c)? Are they not adequately covered by paragraph (a)? It is only a technicality, I will not press it, but why is it necessary to specify these instruments?
I understand that the particular international instruments do not provide an obligation to provide civil legal aid so we are specifically providing that when matters arise under those two items, legal aid will be available.
I move amendment No. 33:
In page 18, subsection (8) (a) (ix), line 31, after "applicant" to insert "solely".
I thought about the situation as suggested by Deputy Keogh earlier but that was too wide in terms of test cases, given the experience in the United Kingdom, for instance, where some very important cases in relation to drugs and tranquillisers were taken on and cost the Government millions of pounds. They had to withdraw from the test cases. The Bill has already been amended in regard to test cases, but the word "solely" would be sufficient here in that it strengthens the section. It means that an individual case can be taken. It may be a precedent but it is not a class action. I was trying to provide a control on the kinds of test cases that can be taken.
I will consult the parliamentary draftsman on this point and return to it on Report Stage if the draftsman considers it necessary.
I was going to talk about test cases and equal treatment but those matters were covered earlier.
It would be helpful to what I was trying to do in this section if the Minister looked at this amendment with the parliamentary draftsman. He may go some way towards coping with the type of cases we were thinking of.
It would not be possible to have something along those lines which would impact on the rest of the section.
Amendment 35 is in the name of the Minister. Amendment 36 is related and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 35:
In page 19, subsection (8) (c) (i), line 5, after "1976," to insert "the Family Law Act, 1981,".
Are there other Acts that should be included as well?
No, not as far as I know.
I move amendment No. 36:
In page 19, subsection (8) (c), between lines 7 and 8, to insert the following:
"(ii) in respect of proceedings arising out of a dispute as to the title to or possession of any property—
(I) between two persons as respects whom an agreeement to marry one another is in force or who are living together as man and wife but are not married to each other, or
(II) between two persons as respects whom an agreement to marry one another has been terminated or who, having lived together as man and wife without being married to each other, have ceased to live together as man and wife, where either or both of them had title to or possession of the property at a time when the agreement to marry was in force, or as the case may be, they were living together as man and wife;".
I am concerned that amendment 36 excludes cohabiting couples unless there is an agreement. Could the Minister explain that for us?
A couple of Senators raised this point about engaged couples and cohabiting couples, that is the reason I brought it forward.
Does it include cohabiting couples?
Yes. ". . . between two persons as respects whom an agreement to marry one another is in force or who are living together as man and wife but are not married to each other".
Yes, but only if an agreement is in force?
No, they are covered if they lived together as man and wife.
In relation to subsection (5) (b) and (c) where you have provided for a central authority, do I take it that where the central authority is assisting somebody in relation to a child abduction case, for example, does this subsection mean that a Legal Aid Certificate can be granted to that person to take proceedings for the recovery of the child outside the State?
Yes, it does.
