I move amendment No. 1:
In page 3, line 13, after "both" to insert "and includes a person under 18 years of age".
Vol. 458 No. 3
I move amendment No. 1:
In page 3, line 13, after "both" to insert "and includes a person under 18 years of age".
The purpose of this amendment is to make it clear that people under 18 years are entitled to legal aid. Generally, people under 18 years cannot maintain civil actions and must get an adult to act as a "next friend". There are many circumstances in which a person under 18 years cannot get a suitable adult to act as a "next friend". For example, if he has left home he may not be able to get an adult to assert his legal rights for him and he may find himself in a vacuum until he reaches the age of 18. Difficulties may also arise in cases involving domestic violence where he would not be able to get the parent guilty of the violence to act as a "next friend". Difficulties can also arise in cases involving landlord and tenant issues, contracts and abuse.
A person under 18 years should be able to seek legal aid if he wishes to pursue a claim for damages. In cases where the abuse took place between the ages of 11 and 12 years the evidence may not be available when the child reaches the age of 18. There are various other circumstances in which a fairly adult child of 16-18 years could find himself without a "next friend" and in need of legal aid and assistance and the amendment proposes that he should be able to get advice in such circumstances. I mentioned this proposition to the Minister on an earlier stage and I would like to know if he has given further thought to it and whether he considers it appropriate to include such a clarification in the Bill.
On Committee Stage I indicated that I would further examine the points made by Deputy Woods. The position is that the under rules of interpretation in relation to statutes the word "person" as used in the Bill will include a person under 18 years of age. There is, therefore, no need for the amendment.
I understand the point made by the Minister — I am sure this is the advice he has received — but a person under 18 years cannot maintain a civil action in his own right. There is a possibility, however remote, that if such a person approaches the local law centre he will be told, "In view of the fact that you cannot maintain a civil action in your own right we interpret the legislation as providing that you are not entitled to legal aid in your own right". Deputy Wood's amendment proposes to clarify the position.
The Minister will be aware of the proposal in the public domain that the Government should establish a legal services agency for children who are not in a position to bring a legal action on their own behalf for their own protection in the case of abuse, where their welfare is threatened or where the person who would normally act for them or is legally entitled to act for them is unwilling or unable to do so.
The very minimum the Minister should do is make the position absolutely clear. The insertion of the words can do no harm to the interpretation of the section. It would put the position beyond doubt. What the Minister says about the advice given to him on the interpretation of the section is totally irrelevant since what he says in this House is not binding on the law centres, from whom those under 18 years will be seeking legal aid. In order to prevent a very undesirable situation we ask the Minister to reconsider his position and for the reason I have outlined, accept the suggested wording.
If Deputy Woods wishes to intervene he may do so but it must be understood that he is now replying to the debate on amendment No. 1. The House will appreciate that on Report Stage Members may speak once only with the exception of the mover of the amendment who, in this instance, happens to be Dr. Woods.
The Minister has said that on further reflection he considers the definition, "applicant" to mean a person applying for legal aid or advice or both; that it can mean also a person under 18 years of age. As Deputy O'Dea has pointed out there may be circumstances in which difficulties will arise over that. The Minister recognised that during the earlier discussion on this issue and consequently was prepared to re-examine it. We do not disagree with the Minister that the term "applicant" can be taken to include persons under 18 years but in the interest of clarity, we believe the Minister should include words to make it quite clear that it does include people under 18 years. We cannot see what will be lost by doing that as all it will do is make it quite clear in all circumstances that a person under 18 years will have that entitlement.
For that reason we favour the amendment but will not press it.
I move amendment No. 2:
In page 4, line 36, to delete ", with the consent of the Minister,".
Section 3 (2) states:
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....
The purpose of the Bill is to establish a statutory board with rights and entitlements that will operate the scheme of civil legal aid on behalf of the Minister and the Oireachtas. In the circumstances we find it hard to understand why the Minister wants all property transactions to have his approval. In practice, this is a much more restrictive approach than exists at present. Under the present arrangement the board has set up its own offices around the country and has done this to everybody's satisfaction. I do not think anybody had any great difficulty with that. Apart from the fact that the Minister appoints all board members he has three direct representatives on it, a representative of the Department of Finance, of the Department of Social Welfare and of the Department of Equality and Law Reform. Other board members are not just representatives of some organisation but are appointed by the Minister. The Minister has direct control and representation on the board.
The subsection continues:
... 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.
We suggest the words "with the consent of the Minister," are not necessary. We believe the Minister has a sufficient involvement in matters arising from issues relating to land. For instance, if the board wants to open a new-suboffice in Tralee it will now have to get the Minister's approval on location and so on. I do not think that is necessary especially when the Minister has such strong representation on the board of this independent corporate body. Once the Bill is enacted this independent corporate body will not have one of the most basic and simple powers in its day to day operations. It is hard to understand why the Minister should have inserted such a provision. The National Management Treasury Agency Act, 1990, on which this Bill seems to be modelled, makes no such provision and the remainder of this Bill seems to come from that Act. The board of the National Management Treasury Agency could be involved in substantial property dealings.
It is difficult to understand why the Minister, in setting up the board as a separate, corporate statutory body with representation of the Departments of Finance, Social Welfare and Equality and Law Reform, should also have a degree of control over matters such as the renting of offices and so on. I would have thought that the criteria that applied to semi-State bodies generally should be adequate to deal with anomalies that might arise and that in any event the degree of consultation would be considerable given that in this instance this is the Minister's board. We believe it will put a noose around the neck of the board's operation which seems to be totally unnecessary. It seems quite clear that the Minister will have considerable influence on the activities of the board.
We had considerable discussion on this topic at an earlier stage. The point we have been trying to convey to the Minister is the degree of control over the board when it is established. People are extremely concerned that the Civil Legal Aid Board should be an autonomous body. Everybody accepts, of course, that in the last analysis the Minister has a responsibility for the matter but there is the case to be made that notwithstanding the overall position the board should be as autonomous as possible.
We are all aware of the recent controversy over the acquisition of property. As the Minister will have adequate representation on the board, he should give those appointees the responsibility he is taking on himself in this area. While he should accept overall responsibility for the board, it is important, particularly in the legal area that the board is as autonomous as possible. This has as much to do with the way the board is perceived as with its functions.
The kernel of the matter relates to the autonomy of the board and the extent to which it is distanced from the Minister. The tenor of the legislation puts a strangehold on the board, to effectively make it an arm of the Department of Equality and Law Reform. The tenor of our arguments is to loosen that stranglehold and establish distance between the board and the Department. The Minister may smile, but it is important to have some distance between the board and the Department. The board will have an important quasi-judicial function. It will decide in what circumstances people can look to the taxpayer to vindicate their legal rights. Expert groups who have studied such matters in other jurisdictions have concluded that, in the interests of public confidence in the system, the board should be as distant as possible from the Department.
I understand the Minister's difficulty in that we do not want the civil legal aid board to turn into a property speculator engaging in major property transactions, holding investments and so on. I conclude from the Minister's demeanour that he is not disposed to accepting our amendment, but I ask him to come part of the way in this regard. The non-statutory board was not hog-tied to this extent, but exercised its functions in a responsible manner. There is no basis for saying a board established on a statutory basis would act less responsibly than one established on an non-statutory basis.
The Bill states that the consent of the Minister is needed to acquire, hold or dispose of land or an interest in land or rights over or in respect of land. We are not opposed to the consent of the Minister being sought when the board engages in such transactions, but his consent must also be sought before the board acquires, holds or disposes of any other property. Property other than land can be personal property or moveable property. The legislation effectively means that if a law centre wants to throw out an item of disused office furniture or acquire a desk or a chair, it must obtain the consent of the Minister. That is ludicrous. By way of compromise at this late stage, the Minister should introduce an amendment to remove this silly restriction. Literally interpreted, it could mean the civil legal aid board would have to acquire the consent of the Department before acquiring a supply of stationery. It should not be beyond the Department of Equality and Law Reform to draft legislation to ensure, in respect of the acquisition and disposal of property, that the board does not exceed its statutory functions and that property transactions would be incidental to its core statutory function to provide free legal aid and advice to those who qualify.
Given the recent controversy about the disposal of property by a semi-State company, I have shown great foresight in framing this section.
Foresight with the benefit of hindsight.
On Committee Stage I indicated that I do not support this amendment which would enable the legal aid board to acquire, hold and dispose of land and property without having to obtain the consent of the Minister. I explained that virtually all of the board's finances are provided from moneys voted by the Dáil to provide legal aid and advice. While I am concerned to ensure that the board has a free hand to act in respect of its primary activity, namely, providing legal aid and advice, given the significant amount of office accommodation and so on which the board requires for its daily activities and which involves significant expenditure of taxpayers' money, I could not agree to it being allowed absolute discretion in respect of the acquisition and disposal of property without ministerial consent. I am satisfied it will be possible for the board to exercise a good deal of discretion on the basis of delegated sanction to deal with minor matters. That covers the point raised by Deputy O'Dea. That is also the best way to proceed under the statutory scheme. I regret that I cannot support the amendment.
I do not understand what the Minister means by delegated sanction.
The Minister has not explained how sanction would be delegated. Would it be delegated by order or by specific regulation? Would it be a clear statutory delegation? If so, it would meet some of our concerns. The Minister should not be confused by recent events. He frequently informs us that hard cases make bad law and this also applies to the running of semi-State bodies. I support the establishment of such bodies. In other countries they are recognised as being effective. I worked in An Foras Talúntas which the Department of Agriculture set up after years of haggling. It was a dynamic independent body for which the late Dr. Tom Walsh, a world figure in science who set it up was never forgiven. We must have confidence in the people who run semi-State bodies and remember that it is not only civil servants who wish to serve the best interests of the country. We should set the terms and conditions and ensure the checks and balances are in place. Semi-State bodies do something Departments do not do well and Seán Lemass promoted their establishment to tackle tasks in a direct operational context while the Civil Service and Government set the checks and balances, controls and so on.
It is in that context we want this statutory body to have more freedom to do a specific job. Under paragraph 224(3) of the non-statutory civil legal aid scheme, the board already had power to acquire or dispose of its interest in any premises as may be necessary for the due performance of its functions. Under the statutory scheme it should have the freedom, in a system of management by exception, to carry out its duties on behalf of the Department with the overriding management ensuring the checks and balances are in place. I do not know if the Minister can say anything about delegating sanction.
It would be by administrative act.
It would be preferable if it were by regulation or by statutory instrument as it would then be open, transparent and easily identified. The Minister should give them that freedom and independence. The criteria that apply to other semi-State bodies should also apply to this body. The Minister appoints the board and has a strong representation on it as has the Department of Finance. It is difficult to see how it could go wrong. The Minister is being too cautious in this respect and it is a sign of lack of enterprise.
It is a sign of caution.
I ask the Minister to reconsider that and, in view of the position taken by him, I will withdraw the amendment and accept the crumb of an administrative delegation.
Amendment No. 3. Amendment No. 4 is an alternative and I suggest that we discuss amendments Nos. 3 and 4 together. Is that agreed? Agreed. If amendment No. 3 is agreed amendment No. 4 cannot be moved.
I move amendment No. 3:
In page 6, line 11, after "office" to insert "who, in the opinion of the Minister, has become incapable through ill-health of effectively performing his or her functions or has committed stated misbehaviour or whose removal appears to the Minister to be necessary for the effective performance by the Board of its functions".
I indicated on Committee Stage that I was prepared to examine further an amendment along the lines suggested by Deputy Woods. My amendment is similar thought it contains some small drafting differences. In the circumstances Deputy Woods may now be in a position to agree that amendment without pressing his.
I thank the Minister for giving consideration to this matter and for his helpful approach. The amendment is satisfactory and I will withdraw amendment No. 4.
Amendment No. 5. Amendment No. 6 is an alternative and amendments Nos. 7 and 8 are related. I suggest we discuss amendments Nos. 5 to 8, inclusive, by agreement.
I move amendment No. 5:
In page 7, to delete lines 17 to 20 and substitute the following:
"(2) The Board may, to such extent and in such manner as it considers appropriate—
(a) advertise its services to the public,
(b) organise programmes of education for the purposes of informing citizens about their legal rights and entitlements,
(c) provide such other information services as it thinks fit, and
(d) undertake research projects.".
We are talking about extending the remit of the Civil Legal Aid Board. The Minister went some way in accepting a Seanad amendment in this regard but it was a minimalist response.
The amendment states that the board may, to such extent and in such manner as it considers appropriate, advertise its services to the public. That is essential. People must be aware of its services and what is available to them. It states that it may organise programmes of education for the purposes of informing citizens about their legal rights and entitlements. The Minister accepts the board advertising its services but an important facet is that people would be informed of their legal rights and entitlements. Unless people are aware of those they will not avail of the services. We seek that the board may provide such other information services as it thinks fit and undertake research projects.
The amendment seeks to give the board as much scope as possible. We do not want to divert the board from its main intent but if it were to undertake research projects it could better discern the direction in which it should go and react in a better way to new developments in the legal framework. No agency can stand still; it must relfect the mores of the times and the needs of the people. This is particularly so in regard to the law. I do not suggest that this should divert the board from its main business but there must be a benchmark against which to measure how well an agency performs. In the area of research it is vital that there be feedback which can be used as a benchmark against which to establish how other companies or agencies operate and evaluate needs and performance. This is extremely important in terms of the quality of service available to people.
Many commercial companies, particularly those involved in the provision of services, engage in research. It is fundamental to all companies, including semi-State organisations and boards under the aegis of Government Departments, that research facilities are available. It is unacceptable to suggest that research would cause large commercial organisations to deflect from their main aim; that would never be the case. On the contrary, it would provide a fresh impetus and ensure a satisfactory reponse to the needs of consumers or clients, which is a very valid expectation in this day and age.
People availing of legal aid, who to some extent require protection, are not in a position to lead in this regard. They are recipients of advice and aid. The type of research proposed in this amendment would mean an expansion of the role of the agency. I ask the Minister to reconsider this matter. It is not our wish to curtail the service available, and I am sure that is not the Minister's intention. If we do not allow the board latitude to develop in these areas we will be doing it a disservice.
Deputy Keogh has set out the position clearly. The three amendments in our name are similar to that in the name of Deputy Keogh. Amendment No. 6 proposes to insert after "information""on the law and legal matters, and information". The purpose of the amendment is to enable the board to provide information about the law and legal issues and to ensure it is not unduly restricted. I accept the Minister has gone part of the way to meet our concerns in this regard. Subsection (2) enables the board to give information about its services, but it should also be able to give information and advice about the law and legal issues. Law centres throughout the country provide information and give explanations on the law and legal issues. It is important that they continue that work but they should also be involved in research. The Minister believes it is unrealistic to suggest that law centres should carry out research. To serve the clients well, a certain amount of research is necessary. It is an integral part of the operation of the service that people are kept up-to-date with matters.
Amendment No. 8 states: "Nothing in this section shall prevent the Board from engaging in research related to its activities, or in the provision of information or education to the public on legal matters". The board may decide where and when research is necessary and the Minister, who has direct involvement with the board, may consult the board in that regard. I am certain that can be done in a harmonious way. It is important to provide on a statutory basis that the board has enabling powers to carry out research relating to its activities. The approach taken by Deputy Keogh to this issue is slightly different from that taken by Deputy O'Dea and myself. I ask the Minister to reconsider the matter.
Deputies Keogh and Woods have made the case very well for these amendments and I do not intend to delay the House. I acknowledge that during the Seanad debate on this legislation the Minister introduced an amendment in this regard, but unfortunately his approach is a minimalist one. The Minister is well aware of the Pringle recommendations on the free legal aid service — that report envisaged a much more broadly based service. Pringle criticised the service as constituted at the time as being too narrowly focused. In this legislation we have missed the opportunity to broaden the civil legal aid system, which is provided largely for the disadvantaged.
As Deputy Woods said, law centres disseminate information throughout the community. Nevertheless, a FLAC survey of 1991 showed that despite the length of time the legal aid system had been in operation, only 58 per cent of those surveyed were aware that a civil legal aid system existed. In disadvantaged areas the figure was 42 per cent. I hope, with the expansion of law centres, that position has improved, but I will not be convinced until I see an updated survey. From talking to people I am almost certain that, proportionately, in disadvantaged areas awareness is less than in other areas. There is a very compelling case for a system along the lines suggested by Pringle.
There are many reasons people do not avail of the civil legal aid system, particularly in disadvantaged areas, such as lack of knowledge and the psychological gulf that exists between them and the legal system. Pringle took account of that and envisaged a position whereby the system would be more broadly based and rooted, particularly in areas of disadvantage in the community.
At present the civil legal aid system provides for subsidisation. A person who cannot afford a solicitor in private practice is means tested for civil legal aid. In some cases, depending on the person's income, they must pay a charge towards the service. Some 98 per cent of clients of the civil legal aid system are family law clients. Various organisations, particularly the Combat Poverty Agency, have criticised this system, and rightly so, as being too narrowly focused — that matter will be dealt with in a later amendment.
On research, it is important that problems are identified and brought to the attention of the Government on a regular basis. The Minister will, no doubt, say that law centres are very busy and do not have time to engage in esoteric research, but even 1 per cent of the budget could be allocated towards commissioning research in particular areas. People working in law centres who deal with these issues at the coalface see the problems that arise and realise that legislation may not achieve the objective intended by the Government. It may impact on people, particularly in areas of disadvantage, in ways that were never envisaged.
There is no difficulty in the way of the Government introducing the appropriate changes. In matters such as this, law reform is preferable to constant litigation.
If there is to be a regular reporting system of problems and difficulties that arise, some mechanism should be established to deal with it. The Minister advised on Committee Stage that he visits the law centres, hears the problems and is kept well informed. I appreciate this, but we should have something more than this hit and miss method, whereby if one visits the centres one will hear about this and that. Some law centres advise of problems by writing to the Department but others may not. We must have some kind of mechanism whereby problems that arise on a regular basis, which could be easily ironed out by a simple reform, are notified to the Department. It is also very important that some research be undertaken to see how these problems can best be resolved.
As currently based, we are building on a system that is too narrowly focused. The amendments in the name of Deputy Woods and Deputy Keogh would help to broaden the system and to bring it closer to what the Pringle Committee suggests. This is desirable, and the system would be better for it.
I agree with the force of one of Deputy O'Dea's arguments regarding the fact that in many cases people do not know of the existence of the law centre or the services available. This is why I inserted subsection (2) of section 5 in the Bill. I refer the Deputy to the subsection, where he will see this point is specifically covered.
Section 5 was amended in the Seanad by way of the addition of subsection (2) to make it clear that a function of the board shall be to disseminate, for the benefit of those for whom its services are made available, information with regard to those services and their availability. The principle function of the board is that set out in subsection (1), which is to provide within its resources legal aid and advice in civil cases to persons who satisfy the requirements of the Bill. In addition, section 6 provides that the Minister may, by order, assign to the board such additional functions as are considered incidental to or consequential on the functions assigned to it under the Bill, and section 37 provides that the Minister may, by regulation, make provision for such matters.
I am satisfied that the board can be relied upon to provide information to the public as required. If the need arises it will be possible, under the Bill as it stands, to make ministerial orders or regulations to deal with the matter. I believe that the board can best ensure access to justice by addressing the priority of providing legal aid and advice to those most in need in society.
As I indicated on Committee Stage, over 90 per cent of legal aid cases relate to family law. Deputies will agree that these cases must continue to be our number one priority and that subsection (1) of section 5 should be the main function of the staff and board.
I do not support the proposed amendments. Their effect would be to divert staff from their main function, which is to provide legal aid and advice. Staff are not employed as educationalists and researchers. No firms of solicitors operates on this basis and law centres have not heretofore operated on it.
Deputy O'Dea also referred to the Pringle Committee. Its report led to the establishment of the scheme of civil legal aid and advice, and it envisaged some role for the board with regard to the provision of legal information to the public. However, at the time it reported, in 1977, the committee envisaged that law centres would be concerned primarily with the provision of legal advice rather than legal aid. The practical experience of the last 15 years has shown this to be the case. Law centres spend by far the greater proportion of their time providing legal aid for court proceedings to members of the public. What the Pringle Committee did not anticipate was the establishment of the National Social Services Board, with a multiplicity of information centres operating under its auspices.
For all the reasons I indicated on Committee Stage, I regret I am not disposed to accept any of these amendments.
I understand the Minister's fears. However, under amendment No. 8 I propose that nothing in this section shall prevent the board from engaging in research relating to its activities. We are seeking to give the board the authority to engage in this. I agree with the Minister's remarks regarding the importance of the mainline work undertaken by the board.
We are establishing a statutory board, which will hopefully last for a long time. This amendment will facilitate the board. We seek to provide the facility to undertake research as part of its work. The Minister is not disposed to making such changes to the Bill and I will, therefore, withdraw the amendments.
Nobody has suggested that we should in some way dissipate the functions of the board. The amendment in my name seeks to allow the board a certain degree of flexibility. The Minister is not taking cognisance of the fact that things change and that a body such as the Legal Aid Board would have to adopt to change. I was suprised to hear him reply that the Minister would make ministerial orders with regard to functions. Surely it should not have to come to this, especially with regard to providing information about the services and undertaking research?
There should be some degree of flexibility. Deputy O'Dea made a reasonable suggestion on the issue of allowing 1 per cent of the budget to go towards research. It is not that this would redirect the efforts towards legal aid for court proceedings. However, it would allow flexibility for the board to undertake research projects as it sees fit.
The Minister is not right in attempting to curtail the activities of the board in this area, and I am not convinced that a lack of flexibility in an area such as this is the best thing. We should allow the board greater autonomy. I am disappointed with the Minister's response to my amendment.
We now come to deal with amendment No. 9, amendment No. 10 is an alternative and I propose that amendments Nos. 9 and 10 be taken together by agreement.
I move amendment No. 9:
In page 7, to delete lines 28 to 35.
This section deals with legal policy directives on legal aid and advice. The section states that the Minister may, by order, from time to time as occasion requires, issue to the board such general directives as to policy in relation to legal aid and advice as he or she considers necessary. My amendment proposes that wording should be deleted.
Deputy Keogh's amendment proposes that in page 7, line 30, after "necessary" to insert ", and shall lay each such directive before the Houses of the Oireachtas". That would be desirable and I support Deputy Keogh's amendment. The section deals with general policy directives on legal policy and advice.
Section 37 provides for a range of regulations and has a catch all provision to deal with such other matters arising by virtue of the Act as the Minister considers appropriate. That is why we question the inclusion by the Minister of this provision and the nature of the policy directives. The Bill sets out the general policy for the board and the extra powers that will be given to the Minister. Those are the issues about which we are concerned.
The Minister made amendments to subsection 3, but subsections 1 and 2 indicate a specific control by him over the operation of the board. There is a limitation and control on the operation of the board which enables the Minister to direct it in a manner which goes beyond the provisions made for the range of regulations in section 37. The provisions of section 37 alone would meet the requirement of Deputy Keogh's amendment, that the regulations would be placed before the House. Our difficulty is that there are many provisions which restrict the operations of the board and maintain tight control by the Department. The Oireachtas is telling the board the manner in which it would like the board to operate and if it were to work to the provisions set out it would perform the task the Oireachtas has set for it. The Minister's intervention through this section indicates that may be the position but he may put forward other proposals not covered by the broad parameters set out by the Oireachtas or by the regulations the Minister must place before the House. One wonders about the purpose of the interference in policy matters through general policy directives on legal aid and advice. That is a matter of concern. If the Minister was not prepared to rely on section 37 for the provision of the range of regulations, the section as it stands would be improved by Deputy Keogh's amendment.
Deputy Woods made a good case. I am concerned about directives on policy. Under section 37 "the Minister may make such regulations as are necessary for the purpose of giving effect to this Act". There is something of a belt and braces approach to that. Now that there is a plethora of committees of the House, matters relating to policy could be considered by one of them. The Minister responded on Committee Stage that the regulations will be laid before the House but that is a passive response. In the area of policy and as we are concerned about the control a Minister — I am not speaking specifically about this Minister although this may relate to a future Minister — may or may not want to exert over a civil legal aid board, it should be a facility of the House that policy should be immediately and proactively examined and not addressed in a passive way.
Part of our concern is that while one might consider this Minister reasonable and open to debate, we must consider also what control future Ministers may or may not try to establish over a board such as this. To a great extent precedents are created in legislation when a Minister is allowed a great deal of control. One might be tempted to say that this Minister is reasonable and we accept that he will not issue regulations and directives concerning this or any other board willy nilly but, unfortunately, we cannot rely on the goodwill of one Minister, we must think of the future when drawing up legislation. In light of the regulation of and control over this board, the Minister should reexamine these amendments.
The basis for issuing ministerial policy directives to the Legal Aid Board already exists in the scheme of civil legal aid and advice. The directives which have so far been made have helped to clarify positions for the board where necessary. In many cases the directives were of direct benefit to legally aided persons. There are precedents in other legislation for policy directives and there is no reason to depart from precedent in this case.
Section 7 was carefully framed. It empowers the Minister, by order, to issue general policy directives in relation to legal aid and advice to the board. However, such policy directives do not confer a power on the Minister to exercise any power or control in relation to any particular case with which the board is or may be concerned. I do not accept there is a need to delete section 7. On the contrary, the section is soundly based and should remain in the Bill as it requires the Minister to issue policy directives by order. Such orders must, by virtue of section 38, be laid before both Houses of the Oireachtas and are published in Iris Oifigiúil. The amendment is, therefore, unnecessary and I am opposing it.
The Minister read a prepared note and did not take account of what was said today. He said that something along similar lines already existed. That is disingenuous because the Minister will be aware that he has made significant changes to the existing scheme, some of which we have debated today. The Minister did not think the existing scheme was perfect in every respect——
I picked out the best parts of it. This was a good part so I adopted it.
There is no point in relying on that old argument because the same argument cannot be used on both sides of the case. During Committee Stage the Minister referred to the high calibre of the people being appointed to the Civil Legal Aid Board and no doubt he will avail of the opportunity to refer to this today. It is a contradiction to refer to the excellence of those being appointed while at the same time he introduces statutory provisions which indicate he does not trust them. He wants to be in full control on a daily basis. The Minister said that under the provisions of section 37 the regulations will have to be laid before the House but what we are talking about here are general policy directives. In an ordinary interpretation of language they will not have to be laid before the House and they do not come under the provisions of section 37. According to this legislation the Civil Legal Aid Board is supposed to act independently, yet the Minister has the power to issue general directives which can change the goal posts and alter the scheme fundamentally. He can do so in secret without having to lay the directives before the House and without being accountable to anyone. That is allowing too much control by the Minister and he should amend the legislation to make it absolutely clear that the general policy directives should be placed before the House. That is the very minimum.
That has been provided for. They have to be laid before the House.
General policy directives are different from regulations. Regulations will govern the running and operation on a daily basis of the civil legal aid system.
General directives have to be made by order under section 7 and the orders have to be laid before the House under section 38.
That is not my interpretation.
That is what the legislation provides for.
If that is the advice the Minister has got, I am happy to accept it. Even if that is true, it is a minimalist approach. I am in favour of section 7 (3) which prevents the Minister from interfering in and taking control of any particular case. That is desirable and it is a change from what was proposed in the original legislation. I may be incorrect in saying that, but from wherever it came it is acceptable. The rest of the section is a reflection of the Minister's stranglehold of the Civil Legal Aid Board, the public perception of which will be bad. The public perception for those who understand it is that the Civil Legal Aid Board has become an arm of Government. If one is seeking legal advice, one does not actually go to the Civil Legal Aid Board or the law centre but to the Department of Equality and Law Reform.
It is clear that the Minister will not make any further alteration. I admit he conceded a change earlier. We have made our concerns clear to him. I accept that under section 38 an order must be laid before each House of the Oireachtas, in addition to regulations under section 37. We are concerned that there is too much rigidity and not enough flexibility. We do not want the board hamstrung or tied down by regulations, orders and directives. We want it free to carry out the intentions of the House and the Minister in a modern fashion. We are concerned about the board being able to carry out some research where necessary and that it should have the freedom to operate. It boils down to the way in which the Minister will operate the new statutory scheme and whether he will be sufficiently flexible in its operation. That remains to be seen. Deputy Keogh has said that although the Minister might be flexible in operating the scheme, his successor is likely to be more flexible because he or she will probably come from this side of the House.
Or may be from this side.
We may not have such a flexible Minister from that side. We have discussed the matter sufficiently and I withdraw the amendment.
I move amendment No. 11:
In page 7, line 39, to delete "September" and substitute "June".
Section 9 (1) states:
Not later than the 30th day of September in each year, the Board shall make a report to the Minister, in such form as he or she may approve, of its activities during the preceding year.
It should be possible for the new statutory board to make its reports within six months. The Pensions Act and other Acts require that reports be available within six months. That has been Government policy. We seem to be moving further away from openness and transparency. The defence the Minister will offer is that it will take a little longer to get the information from law centres. The National Pensions Board, which has to deal with the trustees of many thousands of pension schemes and hundreds of thousands of people each year, has a major task in compiling its information in six months but it is done because the Oireachtas has specified it.
We adopted that line with various other boards and asked that their information and reports be available within six months. That was the Labour-Fianna Fáil Government policy while in office. We now find there is a slippage and that it will take longer for the figures to become available. This may be due to the fact that there are three heads pointing in different directions, as pointed out by Deputy Ahern. In any event, it is preferable that we keep to the six months requirement. There is no reason for specifying a longer period. I will be interested to hear the Minister's reply. All the other boards are being asked to make their reports available in six months. The body is being modernised and will have the equipment to provide information it may have had difficulty providing in the past within the timescale. I ask the Minister to reconsider this matter.
Section 9 as it stands requires the Legal Aid Board to make its annual report to the Minister within a period of nine months relevant to the period to which the report relates. Deputy Woods's amendment, which is a repeat of the amendment he tabled on Committee Stage, seeks to reduce the period in question to six months.
In the Bill as initiated, the period was 12 months but following discussions with the board I was in a position to bring forward an amendment in the Seanad which was accepted and which reduced the timescale to its current period of nine months. I regret I am not in a position to agree any shorter period. The difficulty is that the board's annual reports contain a considerable amount of statistical data which takes some time to compile. The period in the Bill is the maximum time within which the board must report. The 1994 report was made within the shorter period of eight months and this was quicker than many previous reports. I recall in previous years waiting two or three years for reports from the Legal Aid Board.
I am confident the board, on enactment of the Bill, will make its reports quickly, consistent with the need to be as comprehensive and informative as possible. We should not impose unrealistic deadlines which would unduly disrupt the board's operation and other important areas. Consequently, I oppose the amendment.
The Minister said the board has reported within eight months. Was the original period 18 months?
The Bill originally stated 12 months and this was reduced to nine months.
It was reduced to nine months in the Seanad.
It was the best we could do for the Deputy.
The board is already doing better with a report within eight months.
That was in that year. The extra law centres are now open.
What about the Internet?
There is no doubt the board can and will produce its reports within six months. If the Bill stated the report must be produced within six months, it would be done. The report was produced within six months last year and this indicates it is possible when the system is set up. It is similar to the position in the Office of the Attorney General. I heard a report about this matter on "Morning Ireland" today. This office is now doing wonderful things and can turn out information almost immediately. It is possible when the need arises and a clear demand is made. I was conscious for some time of the need to reorganise the Office of the Attorney General.
It is a pity it was not done a long time ago.
When I was in the Department of Social Welfare we offered to help out in that regard. The period has been reduced to eight months and it would not be difficult to reduce it further. I will not press the amendment but the Minister is mistaken. The period should be set at six months as there would be no difficulty in that regard. I hope the board will turn in its reports within six months anyway. I put down the amendment to ensure the public and the House could have access to the information sooner rather than later on the basis of openness, transparency and accountability, which are often mentioned in the House.
I move amendment No. 12:
In page 8, line 4, before "as" to insert "other than information in relation to day to day activities".
Section 9 (2) (a) states: "The Board shall, at the request of the Minister, supply him or her with such information relating to the performance of its functions as the Minister may from time to time specify..." The amendment seeks to insert "other than information in relation to day to day activities" before the word "as".
The purpose of the amendment is to leave the board free to carry out its day to day activities and ensure there is no interference with the daily running of the board with demands for detailed or personal information. The board's day to day activities should be excluded, this is not unusual, I can point to other recent legislation, such as the Pensions Act, where day to day activities are excluded. The amendment seeks to ensure there is no interference. It is important the Minister does not interfere with the board's day to day activities but also that he is seen not to do so. This is important in terms of people's confidence in the daily operation of the board. I raised this issue earlier and I am concerned about it. Before the Bill is concluded, it is important to address this issue and allow the Minister a further opportunity to alter the position.
Section 9 (2) (a) provides that the board shall, at the request of the Minister, supply him or her with such information relating to the performance of its functions as the Minister may from time to time specify. Deputy Woods's amendment seeks to exclude information relating to the board's day to day activities.
I already indicated in debate on this matter it could be argued that almost everything the board does constitutes day to day activities. Acceptance of the amendment could render the operation of section 9 meaningless in practice. The Bill already makes clear in section 7 that nothing in the Bill shall be construed as enabling the Minister to exercise any power or control in relation to any particular case with which the board is or may be concerned.
The Minister is answerable to the Houses of the Oireachtas for the operation of the Legal Aid Board. Over £6 million of Exchequer funding now goes to the board. The Minister's position would be impossible if he or she were, for example, unable to answer questions on the operation or activities of the Legal Aid Board because of inability to obtain the relevant information from the board. The House would not then be in a position to obtain meaningful replies to any parliamentary questions which Members thought necessary to put down in relation the board's operations. In the circumstances, I am unable to support the amendment.
I concede the Minister was correct on the earlier point in relation to section 38. Unfortunately, I have not read the Bill for some time. However, with that caveat, there is potential for abuse with regard to section 7 (3) and the subsection Deputy Woods wishes to amend. This would not be availed of by the current incumbent in the Department of Equality and Law Reform, Deputy Taylor. The Minister stated that under section 7 (3) nothing in the Bill shall be construed as enabling the Minister to exercise any power or control in relation to any particular case.
Effectively that means the Minister is prevented from interfering and nothing in the Bill shall allow him to intervene in any case with which the board is dealing. That is fair enough but it seems under that section, particularly the subsection Deputy Woods is trying to amend, that the Minister could seek information on any case with which the board is dealing. It is not impossible to imagine circumstances in which a less scrupulous Minister than the present incumbent of the Department of Equality and Law Reform might be approached by, for example, a backbencher seeking information about a particular case on behalf of constituents or by a constituent seeking information on his or her own behalf. He or she might be a strong supporter of the then Minister. Is there anything in the Bill to prevent the Minister getting information and communicating that information to either a member of his parliamentary party, a friend or a party supporter?
The section specifically excludes it.
That would be highly unethical. Section 7 (3) prevents the Minister from interfering or exercising any power or control in relation to any particular case. It is not clear enough to prevent him or her getting information on request and communicating that information. I would like that subsection to be watertight.
I think the Minister understands our concerns which are about interference in the day to day activities of the board by officials of the Department or the Minister of the day. We are anxious that the board would be free to get on with its work and not to be interfered with in any way. That is why we put down this amendment. I can only rely on the Minister and his approach to this matter but I advise him that the board must be allowed to get on with its day to day operation. We cannot have the heavy hand of a Department on a board because it would stifle its operation and would not work. I do not wish to appear hard on the Departments in this regard but departmental officials have many other responsibilities, including those to the House, and to all the regulations under which they operate. Consequently, their hand is often stayed in such a way that it can lead to delays and difficulties. The Government is trying to deal with that problem, as did the previous Government, through the strategic management initiatives for the public service and the Civil Service in particular. I am not suggesting that people are malevolent in what they might be doing but it is important that management systems operate efficiently and flexibly. We are trying to ensure there is not any interference in the day to day activities of the board. The question of personal information arises also and the danger that might be used under pressure in particular circumstances. I will not press the amendment.
Amendment No. 13 is in the name of Deputy Woods. Recommittal is necessary in respect of this amendment and related amendments as Nos. 15, 17 and 18 do not arise out of Committee proceedings. Amendments Nos. 14 and 16 are related. No. 15 is an alternative to No. 14 and Nos. 17 and 18 are alternatives to No. 16. Is it agreed that we take Nos. 13 to 18, inclusive, together? Agreed.
I move amendment No. 13:
In page 8, to delete lines 33 and 34.
This amendment proposes to delete lines 33 and 34 in page 8 which read: "An officer of the Board shall, upon his or her appointment as such, be a civil servant in the Civil Service of the State." Amendment No. 14 proposes to delete subsection (5) (a) which reads: "The Minister may, with the consent of the Minister for Finance, by order designate solicitors of the Board as civil servants in the Civil Service of the State, to take effect from the date of the making of such order and upon the making of such an order, subsection (4) shall cease to apply." It also proposes to delete subsection (5) (b) which reads: "The Minister shall not make an order under paragraph (a) without having (i) notified in writing any recognised trade unions or staff associations concerned and the Board of the Minister's intention so to do, and (ii) considered, within such time as may be specified in this notice, any representations made by such trade unions, staff associations or the Board, in relation to the matter."
Perhaps we should hear from the Minister on his amendment No. 15 in which he seems to be trying to clarify the position. He suggests the deletion of lines 42 to 44 in page 8 and substitutes them with the following: "(i) in the case of a solicitor of the Board appointed on or before the date of the making of such order, from the date of the making of such order, and (ii) in the case of a solicitor of the Board appointed after the date of the making of such order, from the date of such appointment." We should hear what the Minister has to say since he has come part of the way to meet the proposals I have made in my amendments.
Section 11 provides for the appointment of staff of the board and provides, inter alia, that staff currently employed by the board who are civil servants be made civil servants of the State. It also provides that the staff currently employed by the board who are not civil servants may also be made civil servants of the State if they so wish.
The effect of Deputy Woods's amendments would be to remove Civil Service status from the staff of the board who are already civil servants and remove the provision whereby any non-civil servant members of the board may be made civil servants if they so wish.
I should make it clear at the outset that to ensure an orderly transition of the board from administrative to statutory status and that the board retains its highly experienced and capable staff, the board and my Department, in consultation with the Department of Finance, engaged in a long series of meetings with the trade unions representing solicitors and administrative staff. As a result of those meetings, detailed provisions which were acceptable to all parties have been agreed and the framework of those agreements is contained in section 11.
I am not now willing, as the amendments propose, to ignore the best interests of staff on the board and I, therefore, must oppose Deputy Woods's amendments. Official amendments Nos. 15, 17 and 18 are technical amendments only. Section 11 (5) makes provision for designation by ministerial order of law centre solicitors as civil servants of the State following consultation with staff representatives. The section is in line with similar legislation where the establishment of a board on a statutory basis is concerned. The purpose of amendment No. 15 is to make clear that solicitors appointed after the date of the ministerial order provided for in section 11 shall also be civil servants of the State. Amendments Nos. 17 and 18 are consequential on acceptance of amendment No. 15.
When I raised this issue on Second Stage I said that the board should be independent in the exercise of its functions, but that the Minister was taking tighter control of its operations. This runs counter to the trend in other countries.
I stated, as at column 777 of the Official Report of 29 June 1995:
The Minister has said that the purpose of the legislation is to establish the board on a permanent basis and to copperfasten the position of the board. However, the Bill creates various problems in relation to the independence of the board.... Staff members, including solicitors, will become civil servants in the Civil Service of the State. At present some of the existing non-legal staff of the board are civil servants. Under the provisions of the Bill all staff will become civil servants. All solicitors and law clerks of the board are employed under direct contract between themselves and the board and do not fall into the category of civil servants. Why does the Minister wish to change the status of the solicitors and bring them within the Civil Service? In a recent article in the Irish Law Times of May 1995, Siobhán Fianna in an article on human rights had this to say in relation to the position of staff members as civil servants:
Section 11 of the Bill also gives rise to some concern in that it is difficult to accept that the staff members will remain independent and neutral in the exercise of their duties, given that under the Bill their status within the Board depends upon the consent of the Minister and that they are also to be designated "Civil Servants in the Civil Service of the State".
It is not that far fetched to suggest that a position of a legal aid solicitor as servant of the State will undermine his/her judgment in decisions relating to actions against his/her master, i.e. the State.
The underlying principle is that the board must be seen to be independent in the exercise of its functions, but the Minister's amendments will bring it under the control and direction of the Department and the Civil Service. This should give rise to concern.
I stated, as at columns 778 and 779:
In case the Minister may consider that this is a concern in this jurisdiction only, this matter has been the subject of discussion in Australia. In the report of the National Legal Aid Advisory Committee in 1993-94, the question of the independence of the Legal Aid Commission in Australia was discussed. In Australia, legal aid is provided through legal aid commissions.... The advisory committee stated it had discussed the independence of legal aid commissions at length and concluded the notion of their independence was initially directed towards ensuring their freedom to act against Government, whether as the initiating party or as the defence, uninhibited by Government interference. The advisory committee suggests there are two underlying principles to the independence from Government control of the commission: first, employees should not be servants of the Crown; and, second, they should not be subject to ministerial direction and control.
It came solidly to the conclusion, having considered the matter long and hard, that the Legal Aid Commission in Australia should be seen to be independent and free to act on behalf of the citizens of that state uninhibited by Government control within the parameters set down, but in the case of the Legal Aid Board here it is clear that the Minister is taking tighter control of its operations. That is wrong.
The Minister has said that the staff have now agreed to the arrangements that he wishes to make. That is a matter for negotiation——
They pressed for them.
——but the board must be free to act on behalf of all the citizens of the State. If the Minister were to establish a commission, I am certain it would reach the same decision as the advisory committee in Australia. The cost of the equality payments at £260 million approximately is the largest expense ever incurred by the State. If the Legal Aid Board had taken a case against the State the matter could have been resolved in 1984 which would have given rise to a cost of no more than £30 million.
I trust the Minister accepts the point that if a body does not regard itself as independent it will be inhibited. Consequently, I cannot agree with the approach being taken by him, although I accept the staff may wish to take a particular line in negotiations. They need to know what line the Government and the Oireachtas is taking so that they can negotiate proper arrangements which must be protected and secured. This is a fundamental issue. It is one on which the Minister missed an opportunity to escape the clutches of departmental control. I have the highest regard for the officials in the Departments but I explained earlier the restrictions under which they operate. A strong statutory body with the powers to do what the Oireachtas desires would be in the best interests of the country in the long run. It is unfortunate that the Government will not go along with that approach.
I agree with a great deal of what Deputy Woods said. The Minister has taken the line of least resistance in this Bill. Whether that is on ideological or purely practical grounds I do not know. There must have been an option for the Minister to establish the Civil Legal Aid Board on a completely independent basis. He must accept that when people see what they consider to be the control of the status quo— many people refer to the Civil Service as the permanent Government — there is a fear that the board will be less flexible than it might be. When we say things like this we all have to pay tribute to the great work done by the Civil Service; that is understood. However, it always seems to be that what is not specifically allowed is forbidden, instead of approaching things the other way around and that is my fear in relation to the board.
The legislation is terribly narrow and defined and may not be in the best interests of what the Minister is trying to achieve. I do not know why he made the decision in relation to the members of the board being civil servants, or whether they should be allowed to take that option, except for the fact that civil servants are already employed there. There could have been a way around that if the Minister wished to find it. Obviously he did not. People will see that the board is to operate under the aegis of the Minister's Department and will perceive it to be, to a certain extent, shackled by the restraints that there must be within a Department and the Civil Service. They may or may not be right, but that is a perception and for many people feelings are facts and perception is, unfortunately, reality.
Dr. Woods made valid points and I am in agreement with many of them. A totally autonomous body may have caused problems for people who were already involved. The Minister says that people already involved pressed for the type of solution that he decided upon, but that is not necessarily the best way to approach the problem. I do not suggest that the Minister should have created a row or made people uncertain as to their future. In other circumstances, difficulties like that have been addressed and they could have been addressed in this case, but the Minister is seeking to establish quite a degree of control over this board.
I said on Committee Stage, and I repeat, that the Minister has confused control and accountability. We all accept that the Minister must have accountability, but it does not follow that he must control everything down to the day to day functions of the board. He will have to give members of the Legal Aid Board, particularly the professionals involved in the specific area, the degree of autonomy that is their due. I suggest this on the basis that there is a perception problem in relation to the freedom of action of the board.
Deputies Keogh and Woods outlined the situation very well and I do not intend to add much to it. We are back again to the question of independence. I have no doubt that the Minister will say that the solicitors working for the Legal Aid Board are officers of the court and that they will not exercise their powers any less fearlessly or independently just because they happen to be public servants. Unfortunately, in turning the solicitors employed by the Legal Aid Board into civil servants, there can be no doubt that the Minister is changing its ethos and atmosphere.
It might not make very much difference in an average family law case where a person seeks maintenance against their spouse or a case where two people want to sue each other about a right of way, but the Minister will be aware that more and more people have to enlist the aid of the civil legal aid service to take on the State. Deputy Shatter gave examples on Committee Stage of people who were refused asylum or citizenship by the Department of Justice. Deputy Woods cited the equality arrears case where ultimately the Department of Social Welfare had to pay out £260 million. If a citizen in that situation who cannot afford a private lawyer goes along to the Legal Aid Board to take on the State, those who will represent him are themselves servants of that State. This matter has only to be stated for it to be concluded that it is undersirable.
It is well known that senior civil servants in different Government Departments know and regularly communicate with each other. The Sir Humphrey syndrome is alive and well in the Irish public service. It is most undesirable and inherently unjust that people who have to rely on the Civil Legal Aid Board to vindicate their rights against the State should have to depend on servants of the very State they are taking on to represent them. The Minister said that there have been trade union negotiations and so on and that the line he was taking was in the best interest of the staff. For whom are the taxpayers providing the annual budget for legal aid and on whose behalf? Is it for the staff, or for the citizens who have to depend on civil legal aid to vindicate their rights?
The situation should not be dealt with in a certain way simply because the staff want it so. Our primary concern should be the consumers of the free legal aid service and their interests are not being taken into account in relation to this matter. Deputy Woods quoted experts in Australia, he also quoted experts who have no axe to grind, who have criticised this trenchantly in various academic magazines. They are objective, they are independent, there is no reason they should criticise this if they do not see it as being wrong. They have no political affiliation as far as I know.
It appears it was left to the staff to take this decision. The Oireachtas would not ask for their views. The Oireachtas, which is supposed to represent the people, was not allowed to take the decision. The staff itself took the decision and the Minister is using the Government majority to vote it through. That is inherently undemocratic.
I did not say that.
Had I wanted to create a future for myself as a solicitor working in civil legal aid I would have become a permanent and pensionable civil servant. Clearly that would be in my interests but not in the best interests of the people relying on public representatives. The Minister can suggest that we are insulting the integrity of the people working in civil legal aid, contending they would work less effectively if they were civil servants, but I would remind him that the whole ethos has been changed it would appear, at the behest of the staff.
The Minister is worried about trade union, industrial relations difficulties and so on but the civil legal aid system is being provided by taxpayers for customers. This step is the last straw. It destroys the independence of the Legal Aid Board and the legal aid system. It is a bad day's work — independent, outside experts are unanimous on this — for the unfortunates particularly those who take on the State, who must rely on the civil legal aid scheme to vindicate their rights.
Deputy Keogh talked about accountability and control, saying that she would like to see accountability but no control. I would not want to be accountable for something over which I had no control.
Control is provided for in this Bill.
I reject any assertion that solicitors of the board would be less independent were they civil servants. There is no basis for that assertion. The approach of Deputies opposite seems to be based on the theoretical argument which suggests that members of the public who want to take action against the Department of Equality and Law Reform or the State will be concerned about the independence of the board because its staff, by and large, are members of the Civil Service. I cannot accept that there is any validity in that suggestion. Whether the board's solicitors are civil servants in the service of the State or otherwise, ultimately they will be paid out of Exchequer funds; that is the unavoidable reality. However, to suggest that they would be inhibited, in acting against the State, because they are ultimately paid by the Exchequer is to do a disservice to a highly trained and remarkably committed group of people.
As I pointed out on numerous occasions in this House and the Seanad, I hold the board's solicitors in the highest regard. I know they are absolutely committed to the principle of equality of access to justice and would not contemplate abandoning a client in any circumstances. For example, staff in the Office of the Ombudsman and of the Garda Complaints Board are civil servants in the service of the State. I have not heard any criticism of those officers in respect of their independence.
If the Deputy has a complaint, he should spell it out.
Deputy Woods referred to the report of the Australian National Legal Aid Advisory Committee in support of his argument, page 14 of which states:
It was clear to the National Legal Aid Advisory Committee that the independence of commissions from Government was never intended to be absolute. Rather, their independence is directed towards ensuring that they are uninhibited by Government interference. Subject to the requirement of independence of this form, the commissioners are to carry out their duties and functions in accordance with their governing legislation.
I am more than satisfied that the independence the board requires and which was envisaged by the Australian NLAAC is guaranteed under this Bill. On the other hand, Deputy Wood is more concerned about public perception than the real effect of having solicitors as civil servants. The bottom line is that, ultimately, solicitors always will be paid out of Exchequer funds.
Any change in the Bill could have two effects only. The first would be simply to mask the fact that the board's solicitors are employees of the State while the second would lead to a deterioration of the industrial relations climate within the board. Deputy O'Dea would have to agree that would not be helpful to consumers, the citizens of this State.
I regret I am not willing to make any changes to the Bill which would lead to a dilution of its provisions and, for that reason, I cannot accept the amendment.
As Deputy O'Dea said, I will not take the Minister's decision lying down and must dispute many of his comments. When he stands back and examines them he will realise someone will read them and ask how he could say such things since the board should be clearly seen to be independent.
The authors of that Australian report made the clear, strong point that the servants of the board should not be civil servants, so that the independence of the board would be seen to be transparent.
"Independence" is a relative term.
Yes, but we are concerned that all the relevant terms revert to more and more control and centralisation. Unfortunately, the Minister does not appear to be able to grasp the point that that is what is actually happening. I know his eminent civil servants are very clever in the manner in which they put their case. In 1967 I was a principal officer in the Civil Service and I am now equated with the grade of assistant principal as a TD, so I have good reason to believe civil servants do not do too badly.
In any event, the Minister is missing the real point here, which is that it is a question of those solicitors having their independence within the parameters laid down by the Minister, Government and Houses of the Oireachtas. There is no question of allowing them to do whatever they like. When the Minister thinks about that, he will fully realise that is what we are talking about.
I might remind the Minister that the members of the Judiciary who are not civil servants are also paid out of moneys funded by the Exchequer, but that does not mean the Minister can interfere with them. There is no question mark over solicitors at present staffing the legal aid system. As far as we can ascertain, they do an excellent job and have been meeting an ever increasing demand very effectively. The question relates to the best option for the future and what type of statutory board should be established. I commend the Minister on setting up the statutory board, on many of the conditions being laid down for that board and on his flexibility in meeting the points we raised earlier. However, this is a crucial, fundamental point. In these enlightened days of openness and transparency, we should go a step further; we should have a vision of the membership and role of this board, which is what we on this side of the House are talking about. Our vision is of an independent board under the overall control of the Minister, his Department and his civil servants. The Minister has chosen to do differently and has given his reasons for doing so. I think he is wrong and that he will regret not having taken the bigger, bolder, more visionary step when he had the opportunity to do so. I commend the Minister on many parts of the Bill. We all do on this side of the House. However, we have great fears about the restrictions on the body. The Minister has not gone far enough to ensure that the board is statutorily independent in the full meaning of that term.
I move amendment No. 15:
In page 8, to delete lines 42 to 44 and substitute the following:
"(i) in the case of a solicitor of the Board appointed on or before the date of the making of such order, from the date of making of such order, and
(ii) in the case of a solicitor of the Board appointed after the date of the making such order, from the date of such appointment.".
I move amendment No. 17:
In page 9, lines 11 to 13, to delete "in respect of whom an order under paragraph (a) of subsection (5) is for the time being in force" and substitute "who are civil servants in the Civil Service of the State".
I move amendment No. 18:
In page 9, lines 20 and 21, to delete "in respect of whom an order under paragraph (a) of subsection (5) is for the time being in force" and substitute "who are civil servants in the Civil Service of the State".
We now come to amendment No. 19 in the name of the Minister. Amendment No. 25 is cognate. We will take amendments Nos. 19 and 25 together by agreement.
I move amendment No. 19:
In page 15, line 17, to delete "section" and substitute "sections 24 and".
I move amendment No. 20:
In page 15, to delete lines 35 and 36, and substitute the following:
"(3) Notwithstanding subsection (2) (and subject to the other provisions of this Act)——
(a) a person shall qualify for legal advice in respect of a conveyancing matter connected to a matter in which legal aid or advice has already been given, and
(b) a complainant in a prosecution for the offence".
Does this make clear whether a person qualifies for legal advice in respect of a conveyancing matter connected to a matter on which advice has already been given?
It enables the board to provide legal aid in respect of a conveyancing matter connected to a matter in which legal aid or advice has already been granted. The effect of amendment No. 20 is to make a similar provision in so far as giving legal advice is concerned. The amendment helps to remove any doubt there may be on that matter.
We now come to amendment No. 21. As amendments Nos. 22, 26 and 41 are related those four amendments will be taken together by agreement.
I move amendment No. 21:
In page 16, between lines 3 and 4, to insert the following:
"(6) The Board may require a person to whom it is granting legal advice to comply with such requirements as it reasonably considers expedient to enable it to satisfy itself that it is reasonable for the person to continue to receive legal advice.
(7) The Board may cease to grant legal advice under this section to a person where it considers that it is no longer reasonable for the person to continue to receive it and, in particular, where the person no longer satisfies the requirements in respect of financial eligibility specified in section 29 and in regulations under section 37.".
Section 26 sets out the criteria for the grant of legal aid. The Bill throughout is very clear on the circumstances under which legal aid may be granted, and it reflects generally what is contained in the scheme as it stands.
The amendment proposed by Deputy Woods is, as I indicated on Committee Stage, excessively broad in its scope. It would allow regulations to be made under which the Legal Aid Board would have complete freedom to grant legal advice apparently with or without limitations. My amendment No. 21 goes some way in the direction of amendment No. 22 in that it allows the board to cease granting legal advice subject to conditions in the Bill and in regulations. However, I have no hesitation in saying it would not be appropriate, given the context in which the scheme of legal aid and advice is operated, and the context in which it would operate under the Bill, to allow the board to operate on the basis proposed generally in the amendment from Deputy Woods. I do not support his amendment. Amendments Nos. 21, 26 and 41 are technical amendments only.
Section 28 (6) provides that the board may require a person to whom it has granted a legal aid certificate to comply with such requirements as it reasonably considers expedient to enable it to satisfy itself that it is reasonable for the person to continue to receive legal aid. The main effect of amendment No. 21 is to make similar provision in so far as giving legal advice by the board is concerned. It also enables the board to cease granting legal advice where the applicant fails to comply with requirements laid down by the board, requirements specified in section 29 and in any regulations made under section 37. Amendments Nos. 26 and 41 are consequential.
The Minister has gone part of the way to meet the points made and we thank him for that.
I move amendment No. 24:
In page 16, line 22, after "direction" to insert "and proceedings under Article 177 of the Treaty establishing the European Economic Community, signed at Rome on the 25th day of March, 1957".
Article 177 of the Treaty establishing the European Economic Community provides that the European Court of Justice shall give preliminary rulings concerning the interpretation of the Treaty. Where such a question is raised before any court or tribunal of a member state, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the European Court of Justice to give a ruling. Amendment No. 24 makes clear that legal aid will apply where there are proceedings before the European Court of Justice arising out of a reference made to that court by any of our courts or a tribunal in accordance with the provisions of Article 177 of the Treaty.
This goes some of the way to meet the points raised on Committee Stage. We welcome the step the Minister has taken, although we would prefer much wider provisions.
I thank the Minister, but criticise him for curtailing the work. He has made an effort to go some way to meet us regarding the work of the board. This provision is very welcome.
I move amendment No. 25:
In page 16, line 26, to delete "section" and substitute "sections 24 and".
I move amendment No. 26:
In page 17, after line 49, to insert the following:
"(7) The Board may revoke a legal aid certificate granted to a person under this section where it considers that it is no longer reasonable for the person to continue to receive legal aid and, in particular, where the person no longer satisfies the requirements in respect of financial eligibility specified in section 29 and in regulations under section 37.".
I move amendment No. 27.
In page 18, to delete line 12.
Section 28 (8) sets out a number of matters in respect of which legal aid shall not be granted by the Legal Aid Board. One of the matters referred to is debt collection. The effect of this amendment is to provide that in all proceedings involving debt collection legal aid may be granted subject to the normal criteria for granting legal aid.
I welcome the inclusion of this provision in the Bill.
I, too, welcome this amendment. The submissions made by free legal aid centres and the Combat Poverty Agency stated that while 98 per cent of their business concerns family law there is an urgent need to provide legal aid for people in regard to debt collection. I am glad the Minister has acceded to their very reasonable request which will be very important in terms of using the legal aid system as an instrument to combat poverty in a fundamental way. However, I am unhappy that free legal aid is not provided for people who go before the Employment Appeals Tribunal or the Social Welfare Appeals Tribunal. At least the Minister has gone part of the way and we thank him for doing this.
The Deputy knows how anxious I am to be helpful in every way possible.
Within certain parameters.
I move amendment No. 29:
In page 18, line 31, after "applicant" to insert "solely".
Section 28 (8) (a) (ix) states: "a matter the proceedings as respects which, in the opinion of the Board, are brought or to be brought by the applicant as a member of and by arrangement with a group of persons for the purpose of establishing a precedent in the determination of a point of law, or any other question, in which the members of the group have an interest". This amendment seeks to insert the word "solely" after the word "applicant" in this paragraph. The Minister has amended the Bill in regard to test cases and the word "solely" may further strengthen this section so that an individual case can be taken. I will not reiterate my earlier points about equal treatment.
Following the Committee Stage debate I asked the parliamentary draftsman about the proposal put forward by Deputy Woods that the word "solely" should be inserted after the word "applicant". I have been informed that the insertion of that word is not necessary and I ask the Deputy to withdraw his amendment.
The Minister gave an undertaking to review the position so as to ensure that such a case was included. I am happy to have received that assurance from him.
Amendments Nos. 31 and 32 are related and may be taken together.
I move amendment No. 31:
In page 21, line 24, to delete "shall" and substitute "shall,".
These are drafting amendments which relate only to punctuation.
I move amendment No. 32:
In page 21, line 26, to delete "it" and substitute "it,".
I move amendment No. 33:
In page 22, to delete lines 13 to 15.
The Bill provides that a law centre may provide legal aid or advice to more than one party to a dispute provided each such party is represented by a separate solicitor or, where necessary, a barrister. There is no statutory prohibition on both parties being dealt with at the same centre and it is important to ensure a clear separation in terms of accommodation in such cases. I thought this issue could be dealt with by the board on an administrative basis but this brought us back to the question of whether it has adequate flexibility. I am very anxious to ensure that the solicitors or barristers for each party are seen to be separate. This will depend on the design of the centre and the provision made for separate treatment. This matter should be handled by the board and, given that it is expanding and providing extra centres, consideration should be given to the provision of facilities for mediation.
Section 30 (6) is purely an enabling provision which does not obligate the head of a law centre to act for both parties; it simply states that any law centre may provide legal aid or advice to more than one party to a dispute. It goes down the road advocated by Deputies that the maximum possible discretion should be downloaded to the people at the coalface, that is the heads of law centres. Obviously, no head of a centre will undertake this unless it is appropriate in the particular circumstances. For example, if a law centre has two, three or four solicitors, both parties in, say, a judicial separation case have agreed all the terms and it is a matter of going into court to have a formal order made then obviously it would be difficult to send one of the spouses 100 miles down the road to the nearest law centre. This provision will be applied at the sole discretion of the heads of law centres in a professional way in suitable cases.
I accept the Minister's explanation and withdraw the amendment.
I move amendment No. 34:
In page 22, between lines 18 and 19, to insert the following:
"(8) The Minister may, by regulation, establish committees representing local interests in a particular area to consult with the person responsible for the management of the local law centre.
(9) No member of such committee shall have access to any client's personal file at the law centre nor shall a member be entitled to any information provided to the staff of the law centre by any person who has availed of or is about to avail of the services of the law centre.".
Has the Minister given further consideration to this matter? The amendment provides that the Minister may, by regulation, establish committees representing local interests in a particular area to consult with the person responsible for the management of the local law centre. It also states that no member of such committee shall have access to any client's personal file, etc. There was much discussion about this on Committee Stage. Has the Minister any further views on the issue?
The amendment would enable me as Minister with responsibility for the Legal Aid Board to establish, by regulation, committees which would consult with law centres. I spoke at length on the same amendment on Committee Stage and stated my reasons for opposing it. I am still of the same view. The board and law centres will be free to engage in consultation with local interests as they see fit. It would be regarded as a poor form of consultation between law centres and local interests if it were necessary for me as Minister to impose by regulation committees representing those local interests. Local interest groups may from committees on their own initiative to consult with law centres without the need for ministerial regulation. If law centres wish to take the initiative in such matters they should be free to do so and not have the matter forced on them. I do not have a problem with that if they decide to do so.
I move amendment No. 35:
In page 23, lines 32 and 33, to delete "provide to any person authorised by the Board to request it any information" and substitute", if so requested by a person authorised in that behalf by the Board, provide the person with any information, in such form as the person may specify,".
This is a technical drafting amendment.
I move amendment No. 36:
In page 24, line 1, to delete "the" where it thirdly occurs and substitute "a".
Amendment No. 37. Amendments Nos. 38, 39 and 40 are related. Amendments Nos. 37 to 40, inclusive, may be discussed together by agreement.
I move amendment No. 37:
In page 24, line 19, to delete "or" and substitute the following:
"having regard to section 34 or, in default of agreement between the person in receipt of the legal aid or advice and the Board, be".
All the amendments are purely technical.
I move amendment No. 38:
In page 24, to delete lines 25 and 26 and substitute the following:
"(ii) determined by the Taxing Master—
(I) in accordance with the rules (if any) of the court or tribunal concerned, and
(II) in the absence of any such rules, as solicitor or client costs,
I move amendment No. 39:
In page 24, lines 28 and 29, to delete ", in default of agreement between the person and the Board,".
I move amendment No. 40:
In page 25, line 38, after "tribunal" to insert "or, as appropriate, determined by the Taxing Master as solicitor and client costs".
I move amendment No. 41:
In page 26, line 23, after "Board" to insert ", the grant of legal advice and the cesser of the grant thereof by the Board".
With the establishment of my Department over two years ago I took over responsibility for the scheme of civil legal aid and advice. At that time it was operated by the Legal Aid Board with insufficient staff and law centres. There were long waiting lists. Those problems have been eradicated by doubling the funds which resulted in a doubling of staff numbers and law centres. Waiting lists bear no comparison to those of earlier years. Staff are highly motivated and we have a new board comprising a good and representative gender balance. It is operating well under the chairmanship of Claire Connellan, a solicitor who is a skilled administrator. For the first time the board comprises two staff association representatives.
The new board, law centres and staff are operating effectively and efficiently and on the basis of what I have seen to date on the many visits I have made to law centres throughout the country there is an air of enthusiasm and no little excitement about a dynamic organisation that is gearing itself for the future.
This landmark Bill puts the scheme of civil legal aid and advice on a statutory basis while allowing for a degree of flexibility to set out more specific details by means of regulations. The perception will be that the board is not only permanent but is being organised and developed strategically to deal with the future and the consequences of marriage breakdown. I am happy to say that the Bill implements the Government's commitment to legal aid.
Amendments have been made to the Bill and, as far as possible, they take into account the fine contributions made by Members in this House and in the Seanad. It is one of a series of major family law Bills which I initiated. The promise made was to bring forward these Bills and culminate the exercise in the holding of the referendum on divorce. On the basis of the Maintenance Act, 1994, the Family Law Act, 1995, the Social Welfare (No. 2) Act, 1995, the Domestic Violence Bill, 1995 and Civil Legal Aid Bill, 1995 we will have an updated code of family law to match that of any developed country. That code of legislation represents a Government that cares about those involved in marital breakdown. It is a response that society expects from Government and one it will be the better for.
We cannot legislate for the right to obtain a divorce and remarry. That is in the hands of the people who will decide the issue on 24 November. All major outstanding legislative matters dealing with the support of spouses and children in the context of marital breakdown have been addressed. Should the people vote "yes" in the referendum the further protections enshrined in the constitutional amendment proposal will become part of our law and the House will have an opportunity to discuss the details of the Family Law (Divorce) Bill which I will be in a position to bring forward.
I thank Deputies for their support on this important Bill and appreciate their constructive contributions. I offer my sincere thanks and appreciation to my officials for their many hours of hard work on the Bill.
On Second Stage I stated that the Bill presented an opportunity for the Minister to adopt a comprehensive approach. However, he did not take this historic opportunity to provide an imaginative and integrated way of dealing with the requirements in this area. We repeatedly pointed out that we wanted the board to be more independent, open and transparent in its operations and gave examples of how such boards operate in other countries. It is regrettable, therefore, that the Minister lost an opportunity to provide for such openness.
The board will be closely controlled and will lack the necessary powers. While we acknowledge that its main function will relate to legal aid and advice, it will not have the power to carry out research. As the need for family law support was never greater the Minister should have taken an independent stance in the formulation of this statutory body. After some 15 years' experience of the legal aid service he could have proceeded in a comprehensive and visionary manner.
The board has been successful in meeting the increasing demands placed on it in the past few years and I compliment the Minister on establishing a large number of local centres and increasing the board's budget to £6.2 million. The officials of the Department must also be congratulated for their exemplary work in this regard. I thank the Minister for introducing a number of amendments to meet some of our concerns, but it is regrettable he did not meet our wishes in respect of the board's independence. Our main concern relates to the basic concept of the statutory body.
I congratulate the Minister on introducing this important legislation and compliment his officials for their work in this regard. I wish the new statutory board success in its work. It will face many challenges in the next few years, irrespective of whether the divorce referendum passes. Many people do not realise there is a demand for the board's services and that will escalate. If the divorce referendum passes the board will experience additional difficulties in the short-term and the Minister must address them. While he has taken important steps in regard to mediation, much more needs to be done urgently in that area, a different approach to this legislation might have facilitated that. I wish the Minister and the staff of the Civil Legal Aid Board success in its operations.
Despite the many reservations I have about the Bill, I am pleased the Civil Legal Aid Board will be put on a statutory footing. I congratulate the Minister and his officials on the work they have done in this regard. Notwithstanding that, too much power has been vested in the Minister and the board will not have sufficient flexibility. It is regrettable the Minister did not go the extra distance in that regard.
The need for free civil legal aid in the case of family law is generally accepted, especially as many women avail of the service. People should be made aware of the existence of the board, especially as we are facing a divorce referendum. From my experience in the past few weeks it is obvious that people are not aware of the extent of marital breakdown and that is clouding their judgment in respect of the forthcoming referendum.
I wish the new board success and hope Ministers will not seek to use the powers of regulation to stultify its work.
I apologise for intervening at this time. The Minister promised to clarify a matter for me on Report Stage but the amendments tabled did not provide an opportunity to raise the matter. On Second Stage I pointed out that a person's home would be taken into consideration when calculating an applicant's capital. The Minister stated I was incorrect in that regard but he previously said that in the Seanad. I would like him to clarify the matter.
I agree with the sentiments expressed by my colleague, Deputy Woods, and compliment the Minister and his officials on their work in introducing this Bill. We look forward to the future workings of the Civil Legal Aid Board.
I would like to provide Deputy Kenneally with the information he requested. I refer him to section 29 (3) of the Bill which states that disposable capital is one of the factors taken into account as determined by ministerial regulation. At line 15 of subsection (8) of that section "disposable capital" is defined as the amount of the applicant's capital after making such reductions and allowances as may be specified by the Minister in regulations. I assure Deputy Kenneally that in making those regulations the family home will be excluded from the definition of "disposable capital".
The Bill, which is considered to be a Bill initiated in the Dáil in accordance with Article 20.2.2º of the Constitution will be sent to the Seanad.