I move:
That Dáil Éireann calls on the Government to introduce a comprehensive scheme of free legal aid in civil and criminal matters.
I recommend this motion to the House with as much sincerity as I can command. In putting down this motion calling on the Government to introduce a comprehensive scheme of free legal aid in civil and criminal matters I would be hoping, to some extent, to be pushing an open door. I believe that there exists to-day a favourable climate in this regard because various statements which have emanated from Government sources would indicate that the Government are favourably disposed towards something along the lines I am advocating. In particular, I should like to recommend this motion to the Minister for Justice as something he might undertake with enthusiasm because I believe it provides him with an opportunity of making a valuable contribution, as Minister for Justice, towards the improvement of the general situation for which he has responsibility. If I were he I should certainly be very anxious to go down in parliamentary history as the Minister who introduced a comprehensive and enlightened scheme along the lines envisaged in this motion.
Despite the terms of the motion, which would seem to indicate that it is primarily a legal matter with which we are concerned, in fact this concept of mine is much more concerned with the social side of things rather than the purely legal side. It relates to the situation of the individual in society and I propose it to the Minister as something in the nature of an improvement in our social welfare rather than a mere academic rounding off or perfecting of our legal structures. In proposing a comprehensive scheme of free legal aid we should be concerned with helping the individual and the family in society to cope with the problems of the modern, complex, complicated society in which we live. In order to consider the motion fully and fairly I would like Deputies to ponder on the legal problems with which the individual and the family have to contend in their everyday lives. In our discussion of this motion I should like Members to try to get away from any idea that we are here concerned with legal battles or dramatic procedures in courts or that this relates to isolated incidents in the life of the individual and the family.
I want to get across to the House that we are in this area concerned very much with the everyday affairs of ordinary everyday men and women and, in deciding on the motion, that is the context in which we should come to a decision. In so far as financial obligations are involved, I would hope that Members would consider the motion in the light of the expenditure involved as an expenditure designed to improve the social environment of ordinary men and women in their everyday lives rather than something that is strictly a matter for lawyers in court.
I do not think I need emphasise to Deputies what is involved because I believe every Deputy is fully aware of the distress, hardship and unhappiness that can arise from legal problems in the life of the individual and the family. I want to try to keep in the forefront of our minds in this discussion the fact that we are here dealing with human problems, human distress and human unhappiness and, indeed, in many cases human hardship and, just as our social policies are designed to improve the living standards of ordinary men and women and to make life more bearable for them and improve the quality of their lives, so must our legal system and our policy in regard to that system be so designed.
Since I put down this motion some time ago there have been a number of developments which have an important bearing on this whole matter. The most important of these was undoubtedly the publication of a report by the Committee on Court Practice and Procedure; it is, I think, the 19th report dealing with desertion and maintenance. There have also been reports issued by the free legal advice centres, and a report by the Free Legal Advisory Bureau in Cork. These reports have aroused a considerable amount of public interest and have given rise to a considerable amount of discussion on the situation which they have outlined for us. The Minister is fully aware of the existence of the AIM group. They have done a great deal of work and said quite an amount about the situation which exists in the area with which my motion is concerned.
We have, of course, already a system of free legal aid in criminal cases. I hope the House will bear with me if I remind them that it was I who introduced this scheme many years ago when I was Minister for Justice. The reason I mention that is that I want to emphasise that, when that scheme was introduced, it was introduced very much on an experimental basis. It was brought in at that time very much as a start. It was never intended that it would be the last word.
I have a very clear recollection of the inauguration of that scheme. In the financial circumstances of that time, it was very difficult to get it through the administrative machine, to get it through the Government and, in particular, to get it through the Minister for Finance and the Department of Finance of that day. There was a fairly understandable worry on the part of the Department of Finance and the Minister and, indeed, others about the financial implications of the introduction of that scheme. As a result, it was hedged around with all sorts of limitations and qualifications, all of which were designed to ensure that it would not become a very serious financial burden and that it would not become, as many new schemes of that sort become, a major drain on the Exchequer. It was introduced very timorously and tentatively.
I must confess to very considerable disappointment that it is still in the rather embryonic state in which it was introduced, with all those limitations and qualifications which were built into it at the beginning as a precaution, because it was being brought in very much on a trial and error basis. Whatever else it has become as a scheme, it certainly has not become a major financial problem for the Department of Justice or the Department of Finance. I am subject to correction here but I think the money allocated for it is still in the region of £40,000 or £50,000 and that even this meagre sum—meagre in Exchequer terms—is not fully availed of in every year.
I want to underline to the House that, in considering this matter, we must have regard to the scheme which exists and we must not for one moment assume that it is a satisfactory scheme. In fact, quite the reverse. I do not think that as a scheme it is working very well. The fees payable under it are much too low and do not succeed in attracting into the scheme everyone at the Bar. I do not wish to criticise those members of the legal profession who participate in the scheme but the Irish Bar is a very competitive place and, by and large, at the Bar the client pays for what he gets. If you want first rank people the fees are payable accordingly.
I should like to see an examination made of this scheme and its operation, to see it updated and to see it extended in its scope and particularly in regard to the fees payable, so that it would succeed in attracting into its machinery every barrister at the Irish Bar and that we would not have the situation which obtains at present whereby the fees payable make it quite unattractive for some members of the Bar to participate in it at all. There will be members of the Bar who will take part in it no matter what the level of the fees is but, if we want it to be a fully effective scheme which will ensure that nobody will be denied top legal advice and top legal service, we must bring the fees up to a realistic level.
At present there is also a system— and again I want to claim that I sanctioned this when I was Minister for Finance—whereby in the Supreme Court and the higher courts the cost of habeas corpus applications is borne by the State. My understanding is that that scheme is closely supervised by the courts and that it works quite well and quite satisfactorily. These are two schemes which are in operation at the moment. In considering the introduction of a more comprehensive scheme we must, of course, have regard to these two existing schemes and fit them in to a new overall comprehensive system.
All the reports to which I have referred underline very clearly the need for giving assistance to the ordinary citizen in the legal sphere. A high proportion of members of the community regard the law as something with which they cannot cope and they are very reluctant, and, indeed, afraid, to have any recourse to it.
I should like to read for the House some excerpts from these reports. The Nineteenth Interim Report of the Committee on Court Practice and Procedure, dealing with Desertion and Maintenance, at paragraph 43, states:
We are satisfied that there is a real need for a radical change in the legal provisions relating to the provision of maintenance for deserted spouses and families. We are also of opinion that failure to maintain, instead of desertion, should be the basis of the new jurisdiction.
That report goes on to state, under the heading, Legal Aid Provisions:
The number of cases of desertion in the Dublin Metropolitan Area is sufficient to justify the whole-time attention of an official solicitor. It is recommended that such solicitor be attached to the Office of the General Solicitor for Minors and Wards of Court, Public Record Office, Dublin, and devote all his time to preparing and pursuing only default cases in both the District Court and the High Court. His services should be made available to all litigants qualifying under a free legal aid scheme and all social welfare and social services advice centres should refer such cases to him in the first instance.
In all area outside the Dublin Metropolitan Area, a similar service should be provided by the local State solicitor.
I am certain that the Minister, and the House, would accept that report of the Committee on Court Practice and Procedure and accept that in that area, apart from any others, there is a very definite and real need for the appointment which the committee recommends.
The report of the Free Legal Advice Centres, at page 23, states:
In coming to our conclusions on desirable changes in substantive law we have utilised our experiences in FLAK where we have seen the tragedy of the parent inimical to the family unit, the tragedy of the young spouse left to support a young family in a situation of complete loneliness and without ever the hope of a new marriage. We feel two major reforms in the substantative law are necessary, (1) the introduction of a simplified and inexpensive separation action with legal aid available to those in need of it.
The report of the Free Legal Advisory Bureau of Cork, in a summary of its proposals recommends:
(1) The existing criminal legal aid system should be revised and extended to ensure representation for all those in need of it.
(2) A comprehensive legal aid system for civil matters should be introduced.
(3) The legal aid system for both civil and criminal cases should extend to legal advice on non-litigious matters.
(4) To ensure that the schemes keep abreast with current demands, a body should be set up which would review the working and effectiveness of the scheme.
In the case of all those who have studied this matter, and have reported on it, there is unanimous agreement that free legal aid is necessary and essential. The House will agree with me if I divert for a moment to pay tribute to young lawyers who gave their time free to operate those advice centres and the advisory bureau in Cork. They have done a great public service in the assistance they have given to people in need of assistance but, more important, in the fact that they have directed public attention to this area and to what is needed in it.
These reports make it clear, and there is fairly unanimous agreement, that a large area in which free legal aid is needed is in the matrimonial and domestic areas. In my view it is quite clear that there is a very real social problem existing in this regard and that whatever solution we are bringing forward, whatever proposals emerge, an integral part of any attack on the unhappiness, distress and hardship which desertion and maintenance involve legal advice and legal aid free to those who need it is essential.
The matrimonial and domestic problems have been fairly well highlighted in recent years and I do not think there will be any great argument about the fact that they do cause this widespread distress, worry, unhappiness and, indeed, hardship, but there are other areas to which public attention is not being focussed so much. These areas are also a source of very widespread distress. I refer, firstly, to commercial arrangements of a minor domestic nature. These, so far as the legal system is concerned, would be very minor and trivial but to the individual or family concerned they can be of fundamental importance. I am talking about hire purchase transactions, rent cases, matters concerning tenancies, contracts for building and for repairs, and money lending. I do not wish to open up again that great area of controversy which we had in this House some years ago but there is no doubt that illegal money lending exists throughout the community and it does give rise to problems.
In these areas, which I have called minor domestic areas for the want of a better description, the individual does not feel that there is anything he can do about them. He feels wronged and unfairly treated but he does not know anything about the law or how to go about seeking redress. More often than not he gives way to despair and frustration and if he does not he will frequently approach his local public representative, his Dáil Deputy or county councillor. That public representative will find himself in a dilemma because he cannot purport to give legal advice and there is no instituation or organisation to which he can refer the constituent. In this area there is quite an active social problem. What is needed is advice because very often litigation is not necessary. All the particular individual needs is advice as to whether or not he has any rights of redress or whether there is anything he can do under the law and, if so, what course of action he should take.
There is another area, the area of probate. Again, this is something which has widespread implications throughout the community. Frequently there is need for the individual citizen to find out what his rights are, how he can establish them, what he should do in his own best interest and so on. There is a system whereby the Probate Office, in the case of certain estates, provides free service to the individual, but I do not think that is known widely enough. That is also an area which should be considered in the establishment of a comprehensive free legal aid system.
In mentioning these matters I come to the central point I want to make on this motion, that is, that the main argument against the introduction of a comprehensive scheme of free legal aid is that we could not afford it, that it would be enormously expensive. I would like to see the emphasis in any such scheme on advice rather than on assistance or the supply of professional services in court. I would like to see a scheme operating to the greatest possible extent outside of the courts. I would regard as the most important part of a comprehensive free legal aid scheme the establishment of advice centres, places to which a citizen could go to find out what the situation is as far as he is concerned, to give him advice as to whether he has any rights, whether he has any case, whether there is any action he can or should take. I would regard the court end of things as of minimal importance. If we had a proper scheme in operation based on advice centres, then the number of court actions that would be involved would be quite small.
If the introduction of such a scheme is approached in the right way, then the financial implications need not be all that terrifying. I would visualise, for instance, in Dublin city six such centres, three on the north side and three on the south side. I just mentioned six for Dublin to give an idea of what I think would be involved, and then that projection of six being needed for Dublin could be extended proportionately throughout the country. If you had such centres in operation, together with the free service, up to a certain limit, in the Probate Office, together with the special solicitor attached to the general solicitor's office, as recommended by the Committee on Court Practice and Procedure, and the existing system of free legal aid in criminal cases suitably amended and extended, then you would have the structure of a satisfactory system.
I understand there is a committee in existence under Judge Pringle which is examining this matter. I would not at all attempt to be critical of that committee, but it took a long time to get the committee established, first of all, and I do not see any results emanating from it. It is time to get some action in this field. It is not good enough to be putting matters on the long finger. There is plenty of good intention around. There is a fair appreciation of what needs to be done. The Minister should give the Pringle Committee a time limit within which to report, and even pending its final report there are things that can be done straight away to come to grips with the problem.
There is in Britain a system based on local regional committees to which the applicant goes, which looks into his financial affairs and decides whether or not he is entitled to free legal aid in civil matters. Many people on this side of the Irish Sea are inclined to judge this matter by the experience in Britain and to say that the system is enormously expensive and that we could not possibly contemplate the introduction of anything of the same sort here. I do not think we need contemplate introducing anything of the same sort. We can devise our own scheme, which would be comprehensive and would meet all the social needs without being as expensive as the British system, particularly if emphasis in our system is on advice.
I would mention also in that regard that I understand that one of the contributing factors to the enormous cost of the system in Britain is the number of divorce actions. While matrimonial matters and maintenance and desertion would, I hope, be adequately catered for under our scheme, we would not have the enormous expense which is generated in Britain by divorce cases.
As I said at the outset, I am not putting anything to the Minister to which he is completely averse, but what I want to do is to urge him to get some action. This Government are rather prone to expressing good intentions and to making announcements as to what they are going to do. I want to suggest to the Minister that this is an area where we should get on with it immediately and stop nibbling at the edges of the problem.
Comprehensive free legal aid in criminal and civil cases is not a luxury. I should like to get that across. It is as necessary to the welfare of a lot of people as social welfare, medical cards, or any of these things are. In the case of many people, if we want to get rid of distress, unhappiness and hardship, we must have as soon as possible an effective comprehensive scheme somewhere along the lines I have been speaking about.
