Select Committee on Legislation and Security debate

SECTION 3.

Dr. Woods

I move amendment No. 4:

In page 4, subsection (2), line 37, to delete", with the consent of the Minister,".

Section 3 deals with the establishment of the Legal Aid Board. Subsection (2) states that the board shall be a body corporate with perpetual succession and an official seal and power to sue and be sued in its corporate name and, with the consent of the Minister, to acquire, hold and dispose of land or an interest in land or rights over or in respect of land and to acquire, hold and dispose of any other property. The amendment proposes the deletion of "with the consent of the Minister". The purpose of the Bill is to put the independence of the board on a statutory footing. However, all its property transactions must have the approval of the Minister. Section 2.2.4 of the Scheme of Civil Legal Aid and Advice states that:

Without prejudice to the generality of Paragraph 2.2.3. above, the powers of the Board will include the power——

(1) to engage the services of such and so many persons as it considers necessary, subject to the condition that the number, kind, conditions of service and method of appointment of such persons will be subject to the approval of the Minister, given with the consent of the Minister for the Public Service;

(2)to suspend or dispense with the services of any member of its staff. . .

(3)to acquire or to dispose of its interests in any premises as may be necessary for the due performance of its functions.

In the non-statutory scheme, the board already has the power to acquire or dispose of interests in premises and to take actions which relate to the performance of its functions. In section 3 of the Bill the Minister is tightening the control on the board by including the words "with the consent of the Minister". This amendment proposes that these words be deleted.

Are there difficulties which mean that the Minister needs to bring the board more closely under the control of his Department or are he and his Department taking more direct control of the board? Deputy Shatter has seen some of the dangers, especially as far as the staff and their freedom of action is concerned. He already made some of the points I was planning to make under the section. This is part of an overall pattern to bring the board more directly under the control of the Department. However, this does not seem to apply to other Acts. The National Treasury Management Agency Act, 1990, makes no such provision.

According to this section, if the board wants to lease a new office or sub-office, in Tralee for example, it must get ministerial approval although it may not have much difficulty in getting this in Tralee. How can an independent corporate body not have the most basic power held by every organisation? Even the smallest mickey mouse organisation has the responsibility and authority to look after its affairs in that regard. The board has to report to the Minister and the House, so there are checks and balances.

The Government has three representatives on the Legal Aid Board — this is a heavily weighted representation — from the Departments of Finance, Social Welfare and Equality and Law Reform. The other people on the board are ministerial appointees. Therefore, what is the need for this change which, in effect, brings about a tighter and closer control over the board by the Minister and his Department?

Ms Keogh

This provision goes back to the power of the Minister over the board. What have the previous boards done or attempted to do make the Minister want to have suffocating control over it? If I was on such a board, I would constantly feel the Minister was looking over my shoulder, examining me and making me feel I did not have autonomy. On the one hand, we are told about the excellence of the people who will be appointed to the board and on the other, the Minister does not seem to trust them. Deputy Woods made a valid point about the board being a corporate body. Unless there is a specific technical reason, I cannot understand why the Minister has to delineate these powers to such an extent.

Of course, there should be checks and balances for the board. In the last analysis, we expect somebody, the Minister in particular, to take responsibility. However, within that there is great scope for the Minister to allow the board to be seen to be autonomous and to act in an independent manner. Many elements of the Bill militate against that and it is most unfortunate.

I support this amendment. I was unhappy with certain sections of the Bill but, unfortunately, some of my amendments have been disallowed. If the Minister does not take this on board or give us some reassurance about the powers he presumes to have over the board, there will be objections to many sections of the Bill. There was great scope after the Seanad debate to improve the Bill further and take on board the fears people had about the Minister's powers. Has the Minister listened to this and will he take on board the points we are making on this matter? The Civil Legal Aid Board should be seen to be independent and autonomous and the argument concerning civil servants is the same.

Mr. Kenneally

It appears that one subsection of this section contradicts another. Section 3 (3) says the board shall be independent in the exercise of its functions while section 2 (2) says it can be independent "with the consent of the Minister". This inconsistency runs throughout the Bill.

This section refers to acquiring or disposing of land. The only time the Minister will exercise his function in such a situation is when a controversy arises. He does not have to get involved in run of the mill matters because there will be no arguments.

I cannot understand what the Minister fears by bringing in this provision. It is like putting a dog on a leash. The more I read the Bill, the more the Minister's grip appears to be tightening. It is almost as if he is afraid to let the Civil Legal Aid Board loose. He is undoing all the good this legislation sets out to achieve. I support Senators Woods's amendment and ask the Minister to accept it.

Mr. O'Dea

I also support the amendment. As we look at the different sections of the Bill, the autonomy of the Civil Legal Aid Board is becoming more of an illusion as the Minister is in total control.

The terminology of the subsection means in effect that if a law centre wants to move into temporary accommodation for a short time awaiting more permanent accommodation, it must get the sanction of the Minister. The right to acquire, hold and dispose of other property has also to get the Minister's consent. If a law centre wants to give away unused office furniture to charity, it has to get the consent of the Minister and that is ludicrous.

As Deputy Kenneally says, section 3 (2), section 7 and the other sections in the Bill that tighten the grip of the Minister are contrary to section 3 (3) which says the board shall be independent in the exercise of its functions. It is no more independent in the exercise of its functions than a Government backbencher. If decency, transparency and honour are to be served properly, the Minister would introduce an amendment to drop section 3 (3) because it is meaningless.

Mr. D. McDowell

We should acknowledge the good work of this Minister in establishing new legal aid centres and in expanding the service over the last two and a half years. He has done considerably more work in that regard than any of his predecessors who did not have the opportunity or the resources. In a sense, this amendment refers to, or reflects on, the capacity of a Minister to make political decisions, essentially, to improve the service. The reality is that if a political decision had not been taken by the then Fianna Fáil-Labour Government two and a half years ago to improve the service, it would not have been improved. The question arises as to whether it should be a decision of the Minister to open services or centres in particular parts of the country — there already was one in Tralee but, for the sake of argument, in Kanturk, Ballina or wherever — or whether that should be a decision for the board. It is important that there should be a criterion there to provide a general service, which is as widespread as possible but I do not see that in the Bill. That must be the central point. It can be done either by imposing an obligation on the board to provide a general service or, as is done in the Bill and as is currently the case, by relying on the Minister to do it. Frankly, whichever way it is done does not particularly concern me but there should be a provision there that a widespread general service be provided.

Mr. Taylor

Deputy Keogh raised three questions. First, she asked if I was listening; second, whether I understand and third, if I would take on board the thrust of this amendment. Yes, I am listening, yes, I understand but, regrettably, I cannot take the amendment on board. Amendment No. 4 would have the effect of enabling the Legal Aid Board to acquire, hold and dispose of land and property without having to obtain the consent of the Minister.

Virtually all the board's finances are provided from moneys voted by the Dáil for the purpose of providing legal aid and advice. While I am concerned to ensure the board has a free hand to act in respect of its primary activity, namely that of providing legal aid and advice, I could not agree, given the significant amount of office accommodation and so on which the board requires — particularly now — for its activities and which involves significant expenditure of taxpayers' money, that they would be allowed absolute discretion in relation to the acquisition of property without ministerial consent.

I am answerable to Dáil Éireann in respect of the vote of the Legal Aid Board and the expenditure of its money. Perhaps I would be removed from that answerability if sole discretion was to be handed over to a board. This board is different from many others in that it is funded virtually in its entirety by taxpayers' money. It is right and appropriate that a Minister must be answerable to the Members of Dáil Éireann, and through them to the people, for that expenditure of public money.

In response to Deputy Kenneally's point, there is no contradiction between subsection 2 and 3. Subsection 3 provides that the board is independent in the exercise of its functions, which are set out in section 5 which states that the board's primary function is to provide legal aid and advice and it is given total independence in that regard. The question of the expenditure of appreciable sums of taxpayers' money and the answerability for that must rest with a responsible Minister, who can be questioned on the matter in Dáil Éireann. Members of Dáil Éireann would — rightly — be the first to complain if they found that substantial sums of taxpayers' money were being expended by a board and that no Minister was answerable for them. It is right and proper, particularly now that the work, range of activities and extent of property transactions of the board have approximately doubled. Major expenditure is now involved and substantial moneys are being ploughed into the civil legal aid system. There must be answer-ability for that.

Even under the existing scheme, the Minister's consent was required before law centres could be established. That responsibility of Ministers was always there and must continue.

Dr. Woods

Essentially, it comes to the point where the Minister is not prepared to trust the board in this regard. There are checks and balances and all semi-State bodies operations are subject to control. The Minister has good regular contact in that the Government has three members on this particular board, which is unusual. It is because of the nature of the business of the board, which spans three Departments. The net effect is that there are three ministerial representatives on it.

If one applied that principle to all boards, there probably would not be much point in setting them up. To set up semi-State bodies, giving the degree of independence in their day to day operations, the policy and principles are set out in the Acts. The Minister has a high degree of control in relation to the overall general policy. That is the normal situation with semi-State bodies. Where the board has almost become a State-controlled operation, I appreciate the situation becomes different.

The Minister must return to the basic point; whether he is setting up a board, to which he gives some responsibility, and he will have the checks and balances to control it. The House operates on similar checks and balances with the public accounts committee, the State-sponsored bodies committee and other committees which deal with these sorts of question generally and the Comptroller and Auditor General deals with the expenditures. Either the board will be given the freedom and allowed get on with the job or the Minister will keep them tied to the Department. This is part of keeping them within the Department and is probably agreed between the Department and the Department of Finance anyway because the Department of Finance always wants to keep everything, except business people, close to them. They do not seem to worry about business people. They let them off to do their thing. It is a tradition. Perhaps they understand them better than the social areas. In any event, it is part of keeping the board close to the Department. I will press the amendment.

Ms Keogh

I am disappointed with the Minister's reply. For a fleeting moment I thought we would get three affirmatives in answer to my questions.

We talk about semi-State boards but this one seems to be like a semi-Civil Service board. I do not believe anybody thought that was the initial intent. In replying, the Minister made much of the fact that he is answerable, that we, as Member of Dáil Éireann, should understand that it is so and that we would be the first to criticise him if he was not answerable in relation to the board. He does not need to go to these enormous lengths to constrain the board to have the necessary degree of accountability. I do not believe he must do that and I am surprised he believes he needs such constraints. I do not think he is right.

There are mechanisms available. Semi-State bodies were used as an example, where there are checks and balances and rightly so. Nobody is suggesting there should not be checks and balances, accountability and transparency — to use all the great words that are used. The autonomy and independence of the board are so important, particularly when we are talking about legal aid, and it is important that people see the board in that light.

There are fears in relation to these constraints and the Minister's response will make people even more fearful. Why not include the entire area under the Department of Justice or the Department of Equality and Law Reform and open an office?

Mr. Shatter

On this issue the Opposition parties are making a mountain out of a molehill. One cannot compare the Legal Aid Board with other bodies which are involved in economic activity and should be allowed within their aegis to make independent decisions about the acquisition of buildings to enable them to carry out investment or other projects. The purpose of the Legal Aid Board is to use the funds provided to it to the maximum possible extent to provide legal services; it is not to engage in empire building by acquiring a variety of investment properties around the State which it might vacate in ten or 15 years and from which it might garner a profit when sold.

It is quite reasonable for the Minister to form a view at any time as to the manner in which property should be acquired by the board for the provision of its services. For example, if the board determines a law centre is required in a town which does not currently have one, it will have the option to purchase or to lease a premises. The moneys used will come from the legal aid funding for that and future years.

It stretches credulity to suggest that the fact that the Minister's consent may be required in making decisions about the acquisition of properties is in some way an interference with the independence of the board. The board should not be interfered with in giving legal advice, when solicitors are acting independently on behalf of those who require advice and representation in litigation. However, nothing hinges on this amendment and it does not matter a whit if the Opposition parties do not proceed with it.

There are more serious issues to be dealt with in this Bill. I understand why this has been moved and if I was in Opposition I would probably do the same to tease things out. Ultimately, however, the Government is entitled to decide that the majority of funding provided should be utilised for the provision of aid and advice and not for the purchase of premises. To that extent the section as drafted by the Minister is quite acceptable and I see no reason for the amendment.

Mr. O'Dea

I listened carefully to the Minister and Deputy Shatter and I cannot believe that I have not heard a reason to change the position which prevailed for the non-statutory board. The Minister will be aware the non-statutory board was not under such a constraint and there was no irresponsible property dealing or misappropriation of property. The non-statutory board exercised its functions in a responsible way and there is no reason to believe a statutory board will act less responsibly than a non-statutory board. The Minister was specifically asked by Deputy Keogh and Deputy Woods to give a clear reason for the change but he has not done so, certainly not to my satisfaction.

This is a fundamental matter. The function of the Legal Aid Board is important because it is quasi-judicial. The board has the discretion and the responsibility to decide who will be aided with taxpayers' money to vindicate their legal rights. It is essential that they should have some measure of autonomy in the operation of these duties. Either we trust the board or we do not and if we start by not trusting it in a minor matter — such as acquiring an office premises for a few weeks or disposing of an item of office furniture — without getting the consent of the Minister, that is a bad omen for how the system of civil legal aid will operate.

Mr. Taylor

It is not a question of not trusting the Legal Aid Board; I appointed the board and I trust it implicitly. The point is that the annual budget of the board is now in excess of £6 million. It has been said the board should be autonomous but is anyone seriously suggesting taxpayers would be happy if a board was given that much money but was not answerable for its expenditure to a Minister? That is totally unacceptable.

The primary function of this board is not to get involved in property transactions, buying or acquiring luxury offices, it is to provide a free legal aid and advice service to people who cannot afford it from their own resources. It is appropriate and essential to have the level of answerability to Dáil Éireann at ministerial level. I find it surprising that Members of the Opposition would seek to hive off responsibility for such a substantial sum of money and pass it to an autonomous board.

The board is autonomous in carrying out its primary function, the provision of the service. It is not quite right to say the Minister had no role under the previous, non-statutory scheme; section 2.2.2 of that scheme provides that the Minister's consent is required to establish a law centre. That is fleshed out slightly in this Bill as far as property is concerned and rightly so. I regret I cannot accept this amendment.

Amendment put and declared lost.

Select Committee on Legislation and Security debate - Wednesday, 12 Jul 1995

SECTION 3.

Select Committee on Legislation and Security debate -
Wednesday, 12 Jul 1995