FLAC welcomes the opportunity to make a submission to the committee on the interlinked topics of access to justice and costs. We requested that the committee further consider legal aid as a stand-alone issue at its hearings on the reform of the family law system and are delighted that it will so do. It is a fitting decision, given that FLAC has been campaigning for comprehensive legal aid and access to justice for 50 years. My remarks will summarise the more detailed submission which has been furnished to the committee.
Access to justice is a process, a goal and a gateway to the exercise of other procedural and substantive rights. Although it has no single precise definition, its core elements include effective access to legal information, early advice, representation, legal aid and the courts, as well as to a fair system of redress, effective remedies and just outcomes. Access to justice is important for several reasons. Most obviously, it enables individuals to know whether they have a claim and how to enforce it. It has a far broader social value and is vital to social inclusion. It has been FLAC’s experience that people who are socially disadvantaged often experience legal problems accessing social welfare or housing or addressing unemployment or debt issues. These issues often occur at the same time. The greater the vulnerability, the greater the number of justiciable issues and the greater the extent of social exclusion. Solving even one of these legal issues has a beneficial impact and may have a knock-on effect on other areas or may improve social inclusion. In that regard, it does not make sense that the Legal Aid Board can represent a person in his or her family law case but cannot do so in a social welfare appeal or eviction case which may be going on at the same time in another court. Research has identified that access to legal advice and assistance can improve people's health and well-being, while reducing pressure on healthcare services. In the United Kingdom, access to justice is treated as a basic right and a vital element in social inclusion policies and id given a similar priority to health and education. We would like that approach to be taken here.
It is also essential to democracy. Laws made by the Oireachtas, such as the important new socially protective provisions contained in the Domestic Violence Act 2018 and the Land and Conveyancing Law Reform (Amendment) Act 2019, are only effective if they can be enforced. It diminishes the democratic process if people do not know about the new laws and are not in a position to avail of the new rights provided.
Access to justice is essential to the rule of law. By that, I mean ensuring that the Executive branch of government carries out its functions in accordance with the law. In the course of its recent consideration of the issue of access to justice, the UK Supreme Court stated:
In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of ... Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.
The most pervasive and intractable weakness of our civil justice system is that it only provides reasonable access to justice to individuals and bodies with very significant resources, the small minority of people who are able to get legal aid and the lucky people who are able to access “no foal no fee” arrangements with their lawyers. This failing was exacerbated by the financial crisis which resulted in serious budget cuts to the Courts Service and an increase in the number of cases. There is increasing awareness of the problem, however, and a growing consensus that major reform is required. The Chief Justice has recently set out on a number of occasions the moral and economic arguments for broader and deeper legal aid.
The committee is asked to note certain matters for context. First, there has been no national economic and social analysis of the impact of the failure to provide civil legal aid in certain areas or the potential cost savings that would be realised through introducing comprehensive access to justice. Understanding the scale and nature of unmet legal need is vital for designing appropriate Government policy and targeting investment. Second, the programme for Government contains a commitment to commission an annual study on court efficiency and sitting times, to be benchmarked against international standards and provide accurate measurements for improving access to justice. An annual study providing accurate measurements would be an extremely important addition to our understanding of the problem. Third, the President of the High Court, Mr. Justice Kelly, is undertaking a review of the administration of civil justice, which includes in its terms of reference the issue of access to justice. It is expected to be completed shortly and should be of significant interest to the committee.
Ireland operates a common law adversarial system, which places a much greater burden of ascertaining facts and researching law on parties to litigation than is the case in a civil law system where the judge plays a far more inquisitorial role. This increased burden on the parties in Ireland is relevant to looking at access to legal aid, access to the courts, provision for lay litigants and costs.
The recent EU justice scoreboard figures for expenditure as a percentage of GDP across the EU show that Ireland is among the lowest in terms of spend on the law courts system. There is significantly lower expenditure on the courts system here than in civil law countries. Ireland also came second last in terms of the number of judges per 100,000 inhabitants. That may at least partly explains why expenditure by parties is considerably more in Ireland than would be the case under a civil law system. Given that our system weighs so heavily on the parties, the Chief Justice has argued that a far higher percentage of GDP should be spent on the courts and legal aid. There is a need to recognise and treat the Courts Service and the Legal Aid Board as being essential to the administration of justice and the rule of law and to resource them accordingly.
On the right to legal aid, it is 40 years since Josie Airey took on the might of the church and the State. She held the State to account for its failure to provide her with legal aid in her High Court family law proceedings. There is a right to legal aid under both the European Convention on Human Rights and the Constitution where it is necessary to ensure effective access to justice. It is not an absolute right in all cases but the European Court of Human Rights has indicated that factors such as the importance of the issue, the complexity of the case, the capacity of the individual to represent himself or herself and his or her emotional involvement are of importance in deciding whether to grant legal aid.
The European Charter of Fundamental Rights also provides a directly applicable right to legal aid where it is necessary to achieve access to justice if a claim involves European law. Huge swathes of socially protective law involve European law. For example, almost all of our employment and anti-discrimination law has a European element. European law is also present in some aspects of social welfare and in regard to homelessness, environmental law and privacy law. This requisite assessment of need as set down by the European Court of Human Rights and the breadth of laws covered are not reflected in our legal aid system with its wholly inadequate funding, rigid and out-of-date means test, which requires one to have a disposable income of €18,000 or less, its completely unrealistic accommodation and childcare allowances, its strictly-applied merits test and the exclusion of many areas of law that impact on vulnerable groups and individuals. We have concerns that the method of delivery of legal aid through law centres does not allow for the targeting of services at particularly vulnerable groups or individuals such as those living in institutions or prisoners. As the Legal Aid Board is, effectively, the largest family law practice in the State, it should be actively involved in education and research.
The current system of civil legal aid in Ireland was introduced in response to the Airey judgment 40 years ago but at the time, fell far short of what had been recommended in the Pringle report on civil legal aid and advice. Although there have since been minor incremental changes, it has proven extraordinarily difficult to bring about substantive change to this restricted system or to convince the Government that it needs to invest significant increased resources in the legal aid system and the courts. We hope that will change on foot of these meetings. A root and branch review of the provision of civil legal aid is needed, to include an examination of the funding of the Legal Aid Board, the means test, allowances, fees, merits test and the exemptions of certain areas of law.
The review also needs to examine the method of delivery of legal services to ensure they are targeted at particularly vulnerable groups and individuals, along with the provision of strategic services for particular communities, as well as the capacity of the Legal Aid Board to engage in education and research.
Access to justice involves more than just access to legal aid and includes access to the courts. We recommend court fees should be poverty and equality-proofed. There should be provision for waivers for people on no or low income or in receipt of social welfare. Our current court forms and procedures are archaic, dating back to the 1880s. While there have been some amendments to them, they need to be reformed to be practical and accessible, including for lay litigants and people with disabilities. I have provided in my written submission some examples of the complex and obscure procedures still in place. Either the Law Reform Commission, LRC, or a broadly drawn group comprising relevant stakeholders such as the Courts Service, the human rights committees of the Law Society and the Bar, the Irish Human Rights and Equality Commission, the National Disability Authority, the Citizens Information board, the National Adult Literacy Agency, as well as relevant NGOS such as FLAC and disability NGOS, should be formed to consider the updating of the forms and procedures to ensure accessibility and clarity.
The courts system is predicated on the basis that people with be represented. We all know a significant number of people try to represent themselves. Our FLAC information line is contacted every day by people trying to navigate what they see as a complex system. We recommend a widely drawn working group should be established to examine access to justice for litigants in person, which would draw up a report and action plan. This has been done in the UK. Any reforms of the administration of civil justice should factor in that many litigants will not be represented by lawyers. The Courts Service should provide guides to administrative aspect of the courts, such as the listing system, call overs, hearing dates, how to address the court, as well as more accessible formats than just print. The more detailed submission repeats the numerous recommendations contained in FLAC’s submission to the review of the administration of civil justice regarding access to justice, particularly for people with disabilities.
Given the number of people who are comfortable with modern technology, the development of an online court service in appropriate cases with appropriate safeguards should be given consideration. It has to be recognised, however, that it will need considerable investment.
The more detailed submission sets out the importance of public interest litigation and contains several recommendations. Legislation should be introduced to permit the use of third party litigation funding and abolish the rules of champerty and maintenance. The Supreme Court has said it is a matter for the Legislature to make provisions for third party funding. Section 169 of the Legal Services Regulation Act 2015 should be amended to expressly include cases taken in the public interest. Protective costs orders should be put on a legislative basis. Legislation needs to be enacted to properly provide for multiparty actions or class actions. The rules on standing should be liberalised and placed on a legislative basis if necessary. The doctrine of mootness, which effectively means a court will not look at an issue if the case has been decided, should be relaxed, particularly in cases of public interest. The State should not use strict confidentiality clauses that require parties to keep confidential the terms and the fact of the settlement.
The more detailed submission sets out the importance of and the development of pro bono legal practice. It recommends the introduction of a public procurement model for public legal services requiring all legal services to sign up to a target of pro bono hours per year. The review of education and training, which is being carried out by the Legal Services Regulatory Authority, LSRA, should have regard to the development of pro bono legal services, particularly in the training and educational needs of those involved in the provision of such services. The development and encouragement of pro bono legal service could be examined by the authority. While such work is valuable and needs to be encouraged, it is not the answer to a properly funded and resourced legal aid system.