Access to Justice and Legal Costs: Discussion

The purpose of this morning's engagement is to begin a series of hearings on the separate but related issues of access to justice and legal costs.

We are joined from the Free Legal Advice Centres, FLAC by Ms Eilis Barry, the chief executive, and Ms Deirdre Malone, legal manager with the FLAC public interest law project, PILA. From the Law Society of Ireland we are joined by Ms Michele O'Boyle, the president, Mr. Ken Murphy, director general, and Mr. Stuart Gilhooly. From the Bar Council of Ireland we are joined by Mr. Conor Dignam senior counsel, vice chair, Mr. Seán Ó hUallacháin, senior counsel, treasurer, and Ms Ciara Murphy, chief executive. You are all very welcome. From the Legal Aid Board we are joined by Mr. Philip O'Leary, chairperson, Mr. John McDaid, chief executive, and Ms Catherine Ryan, managing solicitor of the law centre in Limerick. Thank you all very much indeed for your attendance today.

I will shortly invite you to make your opening statements in the order in which I have introduced you, if that is okay. It is in no special construct. First, I must draw the attention of our witnesses to the situation relating to privilege. Please note that you are protected by absolute privilege in respect of the evidence you are to give to the committee. However, if you are directed by the committee to cease giving evidence on a particular matter and you continue to so do, you are entitled thereafter only to a qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, you should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

Members should be aware that under the salient rulings of the Chair they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

This is the first of our series of hearings that will continue into the month of December on this subject. This is our first address of these matters.

I invite Ms Barry to make her opening statement on behalf of FLAC.

Ms Eilis Barry

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.

I thank Ms Barry. I invite Ms O'Boyle to make her opening statement.

Ms Michele O'Boyle

The Law Society of Ireland welcomes the opportunity to discuss with the committee important issues relating to the justice system. I am accompanied by Mr. Ken Murphy, director general, and Mr. Stuart Gilhooly, former president and council member. We come to this discussion with a strong understanding of how the courts are currently operating and how that impacts on solicitors' clients, many of them families and businesses seeking to resolve disputes and move on with their lives.

The committee is to be commended for focusing on the issue of access to justice. Access to justice does not merely apply to access to the courts but also to legal advice and assistance in dealing with many other aspects of citizens' lives. For example, it can involve how they interact with Departments and State agencies, as well as non-contentious work. In that regard, solicitors play an essential role ensuring the rights of citizens are protected and defended when compared against the might of the State, as well as facilitating their contribution to the economic and social welfare of the State.

The committee has raised queries about competition in the legal sector and transparency in legal costs. Approximately 11,500 practising certificates were issued by the Law Society this year, representing an all-time high. This represents a substantial increase of approximately 64% on the 7,000 issued in 2005. On the education front, we are inching towards 500 trainees at any one time. Throughout the State, there are approximately 2,300 firms, 90% having ten or fewer solicitors, based in every county, city and town. Trends that have, in recent years, shaped the competitive environment include changing consumer behaviour. Consumers increasingly shop around and are happy to have several solicitors looking after various items. The model of the family solicitor – the one-stop-shop – is being increasingly challenged. As a consequence, we compete on what and how we offer, as well as price. Close to 20% of the profession now works in-house, providing legal services only to their employer and not to the public. While many work in the public sector, as well as large institutions and corporations, it is also the case that businesses have employed solicitors to handle legal work internally. The implication of this is that firms are tendering more competitively for corporate work. In turn, this is impacting positively on price and delivery for clients.

With the new LSRA in place, the option of limited liability partnerships is available to firms who are in partnerships. We anticipate that this will lead to greater competition and innovation between firms, as it supports a greater appetite for growth and expansion of practices. As of November 2019, no fewer than 4,000 new admissions from our three neighbouring jurisdictions – England and Wales, Northern Ireland and Scotland - have occurred since 1 January 2016.

The Brexit bounce brings the total number currently on the roll of solicitors to 20,500. Dublin boasts an increasingly international legal sector and a number of UK and international law firms have established here in recent years. The legal market in Ireland has always welcomed competition. Competition is good for the consumer and for the solicitor firms in finding new and innovative ways to deliver for their clients.

I will address the issue of transparency. New and transformative provisions of the Legal Services Regulation Act 2015 commenced on 7 October 2019. Along with new disciplinary and complaints mechanisms for consumers to avail of, the newly commenced provisions significantly strengthen consumer safeguards and transparency in respect of legal costs. As a brief overview with regard to transparency, section 150 of the Act provides for: an indication of costs from the outset of a case, including the basis of those charges; an obligation to update clients on costs throughout the lifetime of a case or matter; a cooling-off period; and mediation on disputes about costs. Failure to furnish this information to clients can result in the solicitors' costs being unrecoverable and it becoming a disciplinary matter. The Act provides for the establishment of an office of legal costs adjudicators. The data that will be assembled by the office of legal costs adjudicators through the public register of determinations, under section 140, as well as the criteria that will apply, will provide a valuable tool in ensuring the proportionality of fees, insights into the factors that inform fee levels and consumer guidance on legal fees. The level of granularity of data in respect of cost headings and stages of proceedings derived from the revised bill of costs, the basis of the forthcoming register, will provide a benchmark to legal professions and to the public that will be much more predictable and transparent.

I will address future developments under two headings. The first is multi-party and class actions. The LRC in 2005 subjected this matter to considerable scrutiny and analysis. At present, there are many examples of large numbers of virtually identical claims being issued in the District, Circuit and High Courts in consumer and competition litigation and product liability litigation contexts where the availability of a class action procedure would reduce costs for all parties and lead to more efficient use of court resources. The LRC recommendations included that a formal procedural structure be set out and rules of court be introduced to deal with instances of multi-party litigation - it provided draft rules in the report - and that reform of current procedures to deal with multi-party litigation should be based on the three principles of procedural fairness for the plaintiff and defendant, procedural efficiency and access to justice. In 2017, Sinn Féin prepared a multi-party actions Bill and this might provide some assistance in progressing the matter.

The second heading is a statutory form of third party litigation funding. The Law Society's view is that the Oireachtas must consider a legislative framework to provide for third party funding. Persona and SPV Osus are two recent Supreme Court decisions, which both called for a legislative response, as well as underlining the role that third party funding can play in access to justice. Such reforms have been introduced in many similar common law jurisdictions and have proven effective in ensuring enhanced access to justice without the perceived downsides associated with US contingency fee models.

A discussion on fees is incomplete without discussing the determinants of fees. Some of those are internal to the solicitor firm, such as rising staffing and operational costs as with any business, and some are external. Key external determinants of legal fees are the delays and other inefficiencies in the courts system. In the context of litigation, increased resourcing of the Courts Service would be a fundamental factor in ensuring that costs are avoided and minimised through leaner processes, adequate professional and support staffing and investment in technology. With 0.2% of our GDP spent on Ireland's courts, as opposed to 0.4% in Germany and the UK, the society believes that investment by the State in the courts system must increase to reverse the cuts and impacts of the recession and to achieve long-term and enduring changes. The society has a warm and constructive relationship with the Courts Service, which should be commended on how it delivers its service to the public considering its limited funding parameters. The service is also going through a number of change programmes and is investing in technology. Substantially increased use of technology is the key to the future and its introduction must be greatly accelerated.

Additional issues arise in the context of capacity. Ireland continues to have one of the lowest numbers of judges per capita in the Organisation for Economic Co-operation and Development, OECD. According to the European Commission, Ireland has one of the lowest proportions of second instance judges. With 6%, Ireland is considerably below the international average of 22%. While recent appointments are welcome, the courts remain significantly under-resourced, particularly the higher courts.

The availability of high-quality research assistance is a major factor in the efficient use of judicial time. Increased capacity for legal research, case preparation and management and the drafting of memoranda, orders and judgments would deliver improved organisational capacity for the Courts Service and, ultimately, improve Ireland’s standing as a forum for litigation. The review of the administration of civil justice, chaired by the President of the High Court, Mr. Justice Peter Kelly, and of which Mr. Stuart Gilhooly is a member, is examining these capacity and efficiency issues and is close to final publication.

The society urges that the report's recommended measures that will improve efficiency and effectiveness should be progressed without delay.

On the issue of capacity building, the society, along with the Bar, is excited about the Government-endorsed Brexit initiative for the legal sector. The newly-appointed chairman, former Taoiseach, John Bruton, will lead a valuable infrastructure project that will benefit Ireland's citizens and businesses, as well as attracting additional dispute resolution work and other international legal work to Ireland. With the right approach and investment, the return on this initiative may endure long beyond Brexit.

Our colleagues on the Legal Aid Board have provided an update on expenditure and activity levels in recent years. We commend the excellent work the Legal Aid Board does, despite its underfunding by the State. Our Constitution provides, implicitly, for access to legal aid for qualifying applicants on the basis that parties before the courts should be entitled to legal representation. Accordingly, legal aid is mandated by the Constitution and primary legislation but it must be meaningful and effective, in terms of scope and access. It must be fit for purpose. The narrative on legal aid might lead some to conclude that the system is disproportionately costly. When one considers EU data comparing expenditure on legal aid per head in member states, Ireland's expenditure is disappointingly lower than that of other EU member states, €17.63 per capita, as opposed to for example, €24.30 in Denmark and €30.69 in England and Wales. The willingness of lawyers to carry out legal aid work is necessary for legal aid delivery. The terms on which legal aid is offered can lead to reluctance to take legal aid work, against the backdrop of increasing complexity of cases, rising overhead costs and the administrative burden of the system. The rates payable, particularly for criminal law, are inadequate and borderline uneconomic. The Legal Aid Board has an unenviable task, within the resources available to it, in delivering on its remit. The society continues to advocate for more resources, improved streamlined systems and process and providing feedback on how the civil and criminal schemes are working.

It is the professional obligation of solicitors to seek the best outcomes for their clients under the law. In pursuing that, the reasonable solicitor generally shows flexibility in terms of fees. Many solicitors provide access to justice, support their clients on a "no foal, no fee" basis, on a pro bono basis, or with a pro bono element. Most of us live in the communities we serve. We build our practices based on the quality and integrity of our service. It is therefore in the interests of the reasonable solicitor to charge proportionate and reasonable fees, and to provide transparency on those. The level of legal fees is the product of negotiation and agreement between individual solicitors' firms and their clients in a highly competitive market of 2,300 firms. Solicitors compete on specialised expertise, on specialised skills and on quality of service, as well as on the level of fees charged. I hope these observations have been of interest to the committee and the delegation looks forward to engaging with it on them.

Mr. Conor Dignam

I thank the committee for the opportunity to address it on a very important topic. For any legal system to operate at its optimum level access to justice must be available to all. Justice is a fundamental value that is important and essential to the lives of every citizen in a functioning democracy. Members of the Law Library play what we consider to be a vital role in promoting and safeguarding the right to access to justice. The principles that barristers are independent, owe an overriding duty to the administration of justice and that the interests of their clients must be and are defended fearlessly are at the heart of the independent referral bar and the regulatory framework that governs members of the Law Library. All of those principles and rules are contained in our code of conduct and that code binds each member of the Law Library. The code also contains what is known as the cab rank rule, which precludes members from refusing to take on a case based on their distaste for its nature, or that of the client, the client's conduct or opinions. This rule plays a very important part and role in ensuring that all members of society have the ability to access the courts and justice with the benefit of expert legal advice and representation. It means that the consumer, the client or the litigant has access to expert and experienced legal representation.

Members of the Bar provide their services through a variety of structures, on the basis of legal aid, on the basis of fees charged, pro bono and fourth, on a "no foal, no fee" basis. I have made a detailed written submission which I know the committee will consider very carefully. In this opening statement I will outline the headlines. We have had the benefit of hearing from Ms Barry on behalf of FLAC and will hear from the Legal Aid Board in due course. It is fair to say that we echo much of what Ms Barry had to say about the necessity for reform and improvement in the legal aid system.

I will address legal aid first. Legal aid has long been recognised as vital to ensuring that a person's constitutional rights have access to the courts and to a fair hearing. The availability of legal aid to those who cannot afford legal representation from their own means is an essential element of the administration of justice in a democratic society. Many recipients of legal aid are among the most vulnerable members of our society and their access to the legal system must be supported and protected. Through the participation of barristers in the provision of civil and criminal legal aid schemes, legally aided clients have the benefit of representation by barristers with experience and expertise. Unfortunately, however, the civil legal aid system in Ireland is chronically under-resourced and significant additional resources are urgently required if a scheme is to provide meaningful access to justice to those most vulnerable members of our society on a long-term and sustainable basis.

Ms Barry has referred to the need for improvements in the eligibility thresholds and the areas of law covered by the civil legal aid scheme and we share and endorse those views because they are necessary to ensure that the constitutional right of access is promoted and supported and secured through the civil legal aid scheme. There is also evidence from the World Bank that there are considerable economic gains to be garnered from increased investment in legal aid.

We have dealt with how those economic benefits accrue through investment in the legal aid scheme in our detailed submission.

We are anxious to emphasise that investment in the civil legal aid scheme should not be seen in isolation. There is little point in investing in a civil legal aid scheme that ensures more individuals have access to a legal system if there are blockages further down the line within that system. The civil legal aid scheme needs to be amended and improved but there also has to be investment in the court system. Constricting budgets are making it harder for the courts to do their work. A series of studies by the European Commission for the Efficiency of Justice, CEPEJ, illustrate how since 2010 Ireland's expenditure on its judicial system relative to GDP is consistently lower than that of neighbouring jurisdictions.

According to the Doing Business survey, conducted by the World Bank group for 2020, Ireland ranks 91st out of 190 countries in the category on ease of resolving a contractual dispute. That is dealt with in detail in our submission but it appears to be the case that Ireland's low rank is largely attributable to its low scores for case management, court automation, and time. Court automation is a function of the lack of investment in IT structures for the court system. Case management and time are directly in respect of the ongoing shortage of judges.

The shortage of judges means delays in the courts system and such delays are themselves an impairment on access to justice. It is undoubtedly the case that a wide series of reforms is required so that timely and efficient access to justice can be secured by every citizen and litigant in the State. We deal with those various reforms in our detailed submission. We also welcome the upcoming publication of the administration of civil justice review, which was chaired Mr. Justice Peter Kelly, the President of the High Court, and in which the Bar Council participated. That review and the recommendations in that report can only be given effect and generate benefits, which I know that this committee wishes to secure in the area of access to justice, if those recommendations are properly supported by funding from the Executive.

The second way in which the Bar provides its services is, of course, on a fees basis. The council recognises that unduly high legal costs can constitute a barrier to access to justice. Contrary to popular narrative, Ireland is not found to be a high-cost jurisdiction for legal costs. According to the World Bank survey mentioned earlier, of the eight common law jurisdictions compared by the survey, Ireland has the fourth lowest lawyers' fees at 18.8% of the value of the claim, which is almost identical to the figure in Australia of 18.5%. That survey also shows that the total cost of resolving a contractual dispute, to include lawyers' fees, court fees, and enforcement costs, is similar to that of Singapore, which is ranked first in the world for the total cost of resolving such a dispute. The overall percentage costs in Ireland are 26.9% while it is 25.8% in Singapore. It is also the case that the market for barrister services is more competitive than it has ever been. This has led to considerable reductions in fees paid to most barristers. One factor that has contributed to this reduction is the long-standing requirement introduced by the Bar unilaterally that on receiving instructions from a solicitor, a barrister must provide a written fee estimate to the solicitor. That requirement is set out in our code of conduct and this obligation was reinforced by having been put on a statutory basis by section 150 of the Legal Service Regulation Act 2015.

That increased transparency and information provided to the consumer through solicitors will have, and has had, the inevitable effect of generating more competition among practitioners. It allows consumers to be aware of the proposed fees and to negotiate accordingly. That, in itself, inevitably has a downward pressure on legal fees.

Those rules generally do not apply where legal services are provided to the State because in those circumstances, work is generally provided according to a fixed schedule or scale of fees unilaterally set by the State. State bodies are the largest consumer of legal services in Ireland and in circumstances where work and services are provided to such bodies, there is little or no negotiation on fees on the part of counsel because fees are set by the State. The high standard and low-cost representation secured by State bodies has been recognised by the Government in its 2018 spending review report on criminal legal aid.

It should also be emphasised that similar to public and civil servants and other State contractors, severe cuts were applied to barristers' fees during the economic downturn. Since 2008, cuts to professional fees have ranged in the order of 28.5% to 69%. There has been no restoration of those fees in the intervening years. These cuts impact directly on the question of access to justice that the committee is concerning itself with. These fees make it unviable for many legal practitioners to continue to participate in State-funded schemes such as the civil and criminal legal aid schemes.

On the criminal front, there is an emerging shortage of experienced junior barristers who can survive the early years of poor income from a criminal practice. This should not be just of concern to the Bar Council and to barristers but should be of a wider societal concern. If this is not addressed, it will mean that there will be fewer barristers to provide services to litigants, particularly in the criminal sphere, which will have a direct impact on their ability to access justice by way of mounting a proper defence. This will have an adverse impact on the administrative of justice and on the public good.

Irrespective of the level of costs, there will always be individuals who simply cannot afford legal services from their own means. In the absence of a proper and adequate system of legal aid that ensures their right of access to the courts, members of the Law Library, along with organisations such as FLAC and community law centres such as Community Law and Mediation, strive to fill that gap by providing their services either on a pro bono basis or, in some instances on a no foal, no fee basis.

Some 82% of the members of the Law Library undertake pro bono legal work. The voluntary assistance scheme is the formal pro bono scheme of the Bar of Ireland, which makes the full range of barrister services available directly to charities, NGOs, and civic society groups on an entirely pro bono basis. The details of that scheme are contained in our submission. Members of the Law Library also provide voluntary legal assistance to a number of community outreach projects that operate outside of the Bar, such as the Community Law and Mediation centres.

In appropriate cases that are not covered by the civil or criminal legal aid schemes, a barrister may be willing to take on an individual client case on a no foal, no fee basis. This means that a barrister will not be paid unless his or her client is successful in the proceedings. This is, in effect, a free legal aid scheme operated by barristers at their own risk. It provides many people with access to the courts where they would not otherwise have such access. The importance of the no foal, no fee structure and system has been highlighted by FLAC and independent law centres such as Community Law and Mediation in circumstances where there is no comprehensive civil legal aid system in the State. The no foal, no fee structure is frequently applied in constitutional and public interest litigation and the availability of such services has unquestionably benefited the recognition, protection, and vindication of constitutional rights of individuals, including the right of access to the courts. Many of the landmark cases in the constitutional sphere have been brought on a no foal, no fee basis. Pro bono and no foal, no fee work play an essential role in ensuring access to justice but I emphasise that they should not replace an adequate legal aid system.

We are grateful for the opportunity to address the committee on these important topics.

We are obviously available to answer any questions members of the committee may have.

I thank Mr. Dignam, who spoke on behalf of the Bar Council. I thank him also for a very detailed and substantive written submission. Finally, I call Mr. McDaid to speak on behalf of the Legal Aid Board.

Mr. John McDaid

I thank the Chair. The Irish civil legal aid system has been in place for almost 40 years. It was put on a statutory footing with the enactment of the Civil Legal Aid Act 1995. The Act obliges the Legal Aid Board to provide legal aid and advice in civil cases to persons who satisfy the requirements of the legislation. It also requires the board to provide a family mediation service. The board furthermore administers a number of criminal legal aid related schemes in anticipation of legislation to transfer responsibility to the board for the administration of the main criminal legal aid scheme.

In order to provide civil legal services, we use a mixed model of service. We have 30 law centres and two specialist offices, all staffed with solicitors, while we refer out certain cases to private solicitors on a fee-per-case basis. Last year, we provided or facilitated legal services to approximately 18,400 new clients. Most of those will have received or be receiving an ongoing service. The majority will have involved legal representation in court, and many of those matters will be time consuming and often demanding cases. In 2018, approximately 71% of those who sought legal services from the board did so in relation to a family matter, just over 10% in relation to international protection, just under 10% on foot of the Abhaile scheme and 9% in relation to general civil matters. I have set out the level of demand in recent years for legal services from the board in the first appendix in my statement.

The civil legal aid system in Ireland is relatively speaking compared with other jurisdictions quite broad scope-wise. All civil matters are within the scope of the system unless specifically excluded, unlike in some other jurisdictions, notably England and Wales, which take the approach that all matters are excluded unless they are specifically included. The main case types that are excluded are defamation, small claims, disputes concerning rights and interests in or over land, licensing and conveyancing. Representative actions and group litigation are effectively excluded also. There are some exceptions to the exclusions.

One aspect of our legal aid system is that legal aid, that is, representation, can only be provided for cases before the District Court, the Circuit Court, the High Court, the Court of Appeal, the Supreme Court, the Coroner’s Court and any court or tribunal that is prescribed on foot of the legislation. It is a matter for the Minister for Justice and Equality to prescribe any tribunal or court, and he or she must have the consent of the Minister for Public Expenditure and Reform to do so. To date, the only tribunal that has been so prescribed is the International Protection Appeals Tribunal and its predecessor, the Refugee Appeals Tribunal. Legal aid is thus not available for cases before the likes of the Workplace Relations Commission.

In terms of comparison with other common law jurisdictions, the scope of civil legal aid in Ireland is very similar to Scotland and Northern Ireland, where the legislation operates on the same principles and with many of the same exclusions. England and Wales have effectively excluded most private family law disputes since the passing of legislation in 2012. According to the latest available Family Court Statistics Quarterly, published by the UK Ministry for Justice, the number of private family law cases where neither party is represented increased from 12% in January 2012 to 39% as of June 2019. Most Australian and Canadian jurisdictions do not fund, or only fund to a very limited extent, money damages cases, for example, tort and contract cases, while in Ireland these cases come within scope. In many European Union member states, other than the United Kingdom, Malta and Cyprus, the legal environment and rules are very different, and in some jurisdictions and courts, legal representation is compulsory. This makes comparing the provision of legal aid in such jurisdictions with our own very difficult.

Our financial eligibility criteria for legal aid are laid down in some detail in the legal aid regulations that have been passed between 1996 and 2017. Broadly, the regulations provide that a person’s disposable income must be below €18,000 per annum. Disposable income is assessed by taking gross income and deducting certain allowances. A person’s disposable capital assets must be below €100,000. The person’s home, if he or she is a homeowner, is not assessed as a capital asset for the purpose of the regulations. I have set out in the table in the second appendix the income and capital thresholds for a number of other common law jurisdictions. Allowances differ from jurisdiction to jurisdiction and so the thresholds may not be directly comparable. Research work that we did back in 2009 indicated that approximately 50% of the population was eligible for legal aid. We updated the research a couple of years ago using 2015 data and the finding was that eligibility was in the region of 46%.

It is common case that the rules of civil procedure in Ireland need updating, and I doubt that I can add anything to what the review group, chaired by Mr. Justice Peter Kelly, is likely to recommend. However, as I have alluded to, most of the work we do is in the area of family law, which is an area that Mr. Justice Kelly’s review group will not address. I strongly believe there is scope for reform of the family justice system. I wholly endorse the recent report of this committee in relation to that system, and our chairperson has publicly expressed endorsement on behalf of our organisation. We have worked with senior officials in the Department of Justice and Equality to progress the heads of a family courts Bill, which I am aware is just one reform aspect but it is a really important one. Our commitment to reform in this area is about pursuing better experiences and outcomes for persons going through a relationship breakdown, but it is also about having a more efficient system and thus being able to use our resources more efficiently. I echo the comments that have already been made by other contributors on that particular issue.

We have waiting times at our law centres, and it is always a concern of both the statutory board and my own to try to manage those as best we can. It is worth noting that approximately 57% of those who seek legal services from us will get an immediate or near-immediate service. We will always prioritise certain case types, including domestic violence cases and cases involving Tusla, where we are representing parents whose children are the subject of applications to be taken into care or under supervision. Most of those looking for legal services for a remedy in the District Family Court will be granted legal aid swiftly. Legal services on foot of the Abhaile scheme are effectively immediate. I am noting this not in any way to diminish concerns about waiting times.

In terms of impediments to improving the promptness of services to those who are waiting, one particular challenge at the moment is solicitor recruitment. We are limited to offering new recruits the first point on the pay scale. A number of other public bodies have been able to obtain flexibility within their scales in terms of what they can offer, but to date we have not been able to get that flexibility. A solicitor recently left us to go to another public sector body, anecdotally on the basis that he was going to be paid €15,000 per annum more. It is an ongoing issue to persuade the Department of Public Expenditure and Reform, and we are being supported by our own Department in this regard.

We refer work to private solicitors on a fee-per-case basis. The fees require the approval of our own Minister and the Minister for Public Expenditure and Reform. As an organisation that works on a closed budget basis, we have to strike a balance between maximising the number of cases that we can refer to private solicitors while at the same time ensuring that the fees payable attract enough solicitors to do the work. I doubt that many would argue that the Irish legal system is lay litigant friendly, though one qualification I would put on this is that it is notably friendlier in the District Family Court in Dublin. Situations like repossession lists are clearly difficult places for persons who do not have legal representation. On foot of the Abhaile scheme, we now have a duty solicitor service in county registrar’s possession courts, which the board facilitates and organises, and which may allow what would be lay litigants to get some level of legal assistance on the day of the court.

On the subject of class actions, I would urge that considerable attention is paid to any legal aid aspect that might be contemplated for such actions, as this could require a significant rethink in terms of the legal aid system. While it may be somewhat tangential, there are proceedings in being on behalf of a company limited by guarantee against the board where the company is seeking legal aid for the purpose of other litigation relating to the environment. I do not propose to comment on the other issues raised in the appendix to the committee’s invitation, though we would welcome members' questions on those issues or on any other matter on which we can usefully contribute. I thank the committee.

I thank Mr. McDaid who spoke on behalf of the Legal Aid Board. I thank all of the witnesses for their opening statements. I also extend a welcome to all of their colleagues seated in the Visitors Gallery this morning.

Without further ado I will open up the opportunity to comment to members of the committee. Only one member, Deputy Jim O'Callaghan, has indicated.

I will ask questions but I did not necessarily want to go first.

We can pass the baton.

I did not realise we were having a relay race.

I call on Deputy Connolly to kick off proceedings.

Tá fáilte romhaibh go léir. Access to justice and legal costs is one of the most important topics. I am relatively new to this committee. I thank the Chair and the members for choosing this topic. I did have some input into the work and agenda.

Forty years have elapsed since the Airey case and it is extraordinary that we are still talking about very basic factors concerning access to justice. In three and half years my respect for the legal profession, particularly the Judiciary, has increased and my colleague seated beside me might laugh at that. However, I certainly need and see the importance of having a very independent and strong legal profession and Judiciary, which are often the last call for the citizen. Within that there is huge inequality.

I will quote the Chief Justice because we do not often have chief justices leading us. He stated:

There is little point in having a good court system, likely to produce fair results in accordance with law, if a great many people find it difficult or even impossible to access that system for practical reasons. But it has increasingly become the case that many types of litigation are moving beyond the resources of all but a few.

I ask that the witnesses in the course of answering might deal with the question of access and the comments made by the Chief Justice.

I shall start with the solicitors and the fact that a reference was made to the setting up of an office of legal costs adjudicators in the opening statement. Has the office been set up under the Act?

Mr. Ken Murphy

I am not 100% certain what the up-to-date position on that is. The office was due to have commenced last month. This is, in many respects, the modernisation and-----

I understand. Has the office been established? If not, when will it be?

Mr. Ken Murphy

Again, it is not a matter for us. It is a matter for the State to create that.

So Mr. Murphy has no information on the office.

Mr. Ken Murphy

I know that the project was pending but I have not got absolutely up-to-date information on that.

Is Mr. Gilhooly a member of the review committee?

Mr. Stuart Gilhooly

I am, that is right. To further answer the question on the legal costs adjudication situation, it is not really a question of setting up that office. It is really a question of changing procedures and modernising the Taxing Master's office. So, it is currently in place. As Mr. Murphy said, we have no role in that whatsoever but we are obviously happy to help that.

I understand. Representative of the Courts Service were before the Committee of Public Accounts where they talked about having a more open, transparent and accessible courts system. We are all in agreement that the courts need modernisation.

Mr. Stuart Gilhooly

We certainly are.

Mr. Gilhooly is a member of the review committee.

Mr. Stuart Gilhooly

I am, yes.

When will the review committee publish its report?

Mr. Stuart Gilhooly

I have only recently got correspondence from the president and I think he is planning around spring. It is very much at the last element of it. There is a meeting, I think, off the top of my head, in January or maybe February.

I understood that the report was to be published this year.

Mr. Stuart Gilhooly

It will not be.

Was it to be published this year?

Mr. Stuart Gilhooly

That had been the plan.

Was it part of the terms of reference that the report would be published this year?

Mr. Stuart Gilhooly

I do not know as I did not set the terms of reference. What I can tell the Deputy is that the president has been working very hard on the report and a huge amount of work has been done. I am only one member of the committee. I think what has occurred is that there was probably a little bit more work in it than was anticipated. It is going to be a longer report than was anticipated. Several chapters have been added to the report that had not initially been intended to be done so I think there will be a more comprehensive report.

Can Mr. Gilhooly give us a broad overview of what will be covered?

Mr. Stuart Gilhooly

A lot of elements are being covered. Modernisation of the Courts Service is certainly one of them by way of technology, which is extremely important and is perhaps the most important aspect. Costs will be part of it. There is a whole chapter on costs.

Mr. Stuart Gilhooly

The chapter has not been finalised yet so I cannot tell the Deputy the contents. The costs are one of the aspects that still have to be finalised.

Two of the very most important elements of the courts system are discovery and judicial review. Suggestions for modernisation of both will be whole chapters.

There will be aspects relating to each individual court - the appeal court, the High Court and the Circuit Court. As the report is not finalised I cannot go into any details and I am sure that the Deputy does not want that.

I seek an overview. Are lay litigants covered?

Mr. Stuart Gilhooly

Lay litigants are covered in it, yes, and reference to-----

Is there an increasing number of lay litigants?

Mr. Stuart Gilhooly

There is an increasing number. That aspect will be dealt with in the report, yes.

It is disappointing that the report has taken so long.

Mr. Stuart Gilhooly

It is but that is through no one's fault, in fairness.

I want to establish clarity on when the report will be published. Is the report expected in the springtime?

Mr. Stuart Gilhooly

That is certainly the current plan, yes.

We also await a review from Mr. O'Malley on sexual offences and, again, the date of that has been pushed out. These are things that we, on the committee, are keeping an eye on.

Mr. Stuart Gilhooly

I can assure the Deputy that the President of the High Court is not a man who takes delay lightly.

I did not refer to the President of the High Court. I referred to the date of the publication of the report.

In terms of the Criminal Justice (Legal Aid) Act, I did not catch the name of the chief executive of the Legal Aid Board.

Mr. John McDaid

My name is John McDaid.

Mr. McDaid is very welcome. He will have heard the presentation made by FLAC and talk of a root and branch review of legal aid. I noticed that he was very cautious in his comments or perhaps I misinterpreted him. What does Mr. McDaid think of the recommendation to have a root and branch review?

Mr. John McDaid

We would have no difficulty with a root and branch review.

Does Mr. McDaid see the need for such a review?

Mr. John McDaid

I can see that the legal aid system is not perfect. I would be familiar with other legal aid jurisdictions. I think every legal aid jurisdiction struggles to come up with the perfect model. I can see that there are people who may find themselves disempowered at times, yes.

Perfection comes in another life.

Mr. John McDaid

Sure.

In this life there is a waiting list. How long is the waiting list for people?

Mr. John McDaid

The waiting list varies.

What is the longest waiting time?

Mr. John McDaid

The longest would be close enough to a year.

How many people are waiting?

Mr. John McDaid

At the moment in the centre with the longest waiting time there would be just over 100 people. Again, when I talk about being proactive about trying to manage the waiting times, for example, a number of the people who have been waiting the longest would have been offered appointments in alternative law centres because it is a Dublin centre. I have mentioned issues around recruitment. We have been trying to address those issues to try to stabilise the workforce and manage or reduce the waiting time.

I am not here to find issue with the Legal Aid Board-----

Mr. John McDaid

I appreciate that.

-----or the legal aid scheme. Clearly, FLAC has called for a root and branch review.

Mr. John McDaid

Yes.

The call for a review seems to be echoed by solicitors and barristers, perhaps, using different language but they seem to be asking for the same purpose. Are they wrong?

Mr. John McDaid

No. I am not saying they are wrong.

Let me ask a different question. From Mr. Daid's experience and the resources of his organisation, has the Legal Aid Board an opportunity to conduct research to discover the gaps and problems that need to be addressed? Has the board enough resources to do such work?

Mr. John McDaid

No. We have not carried out research on unmet legal needs. We have a relatively limited research function. If the Deputy's question is around the extent to which there is unmet legal need, no, I do not believe we would have the capacity to carry out research of that nature, which I believe would be very expensive.

Something that came up recently was the Civil Legal Aid Act 1995, which has a provision to give help to victims of sexual assault and violence in limited situations.

Mr. John McDaid

Yes, that is correct.

What is even more important is that there is a very low uptake of that.

Mr. John McDaid

Yes.

Please clarify why the uptake is so limited.

Mr. John McDaid

There are two provisions. There is a provision in relation to legal advice that a complainant in a prosecution is entitled to get legal advice free of charge and without reference to their means. We do advertise that service on our website. I believe that a lot of the NGOs are aware of that service. The Office of the Director of Public Prosecutions is aware of that service. We do not control the demand for that service. The service is there if people wish to avail of it.

I do not know if we can do much more to be proactive in marketing that service.

Does Mr. McDaid view the low uptake of that important service as a problem, given the level of violence in society?

Mr. John McDaid

The service is there. I believe the NGOs that work in this area are aware of the service.

We have many briefing papers here, in different contexts, and I read one in particular because it applied to Deputy O'Callaghan's recent Bill. That paper refers to the fact that the take-up of this legal advice is relatively low, with only one application in 2018 and four in 2017. Amnesty International, in 2005, stated of the provision: "In practice, this provision has not been used and victims are generally unaware of its existence." Does that concern Mr. McDaid?

Mr. John McDaid

It concerns me at a general level but the gateways to our service are likely to be the Office of the Director of Public Prosecutions, DPP, or NGOs because I surmise that they are the first ports of call for victims, or, indeed, the Garda, which will have initiated the prosecution and taken a complainant's statement. The Garda is aware of the service and the details of the service are on its website as well as our own. I do not know what else we can do to promote its use.

Where the issue of prior sexual history is at play, for want of a better phrase, in a case, we provide representation. We provided representation in 47 such cases last year.

I understand that but I have been a Deputy for more than three and a half years and I question what I am doing and what is my role. The most common theme to emerge is the failure to analyse all systems, the failure to examine that system and ask what are the gaps and to give feedback on policy to the Government. There is clearly a gaping gap in a theoretical service that, on the ground, is not being taken up.

Ms Catherine Ryan

I want to supplement some of Mr. McDaid comments. I am the editor of an internal publication in the Legal Aid Board called Legalese where we look at different issues and our latest publication looked at the issue of representation of complainants in rape and sexual assault cases. In conjunction with that, we provided a comprehensive document looking at the legal issues that arise in those cases, some of which are very technical.

The Deputy asked why we are not getting some of those complainants at an early stage, or a stage at which we can give advice. Part of my research involved engagement with the Dublin Rape Crisis Centre and that was one of the issues that I discussed with representatives of the centre. It was in one of the papers that they submitted to us. It is partly to do with the fact that complainants may get advice from the centre. Complainants are getting advice from some other outlets and may not always come to us for representation until they are in court and the net issue of sexual history is before the court. While it is certainly something the board and I are interested in promoting, I am not sure what avenues are there for the victims to whom we can afford available services. We are keen to provide that service and we have specialised solicitors.

I understand that, but there is a gap. I am conscious that we are in the midst of a 16-day campaign that happens every year in opposition to violence against women. I am not asking our guests to sort this out but it should be highlighted and there should be an in-built analysis of the gaps and failures that exist and feedback provided to the Government thereon. Is that happening at the moment? Is the Government being told that the legislation is there but victims are not using the limited scheme that is in place? I think our guests will accept that.

Ms Catherine Ryan

We would welcome it and are very much open to providing it.

I am getting at the board's role in feeding back the information to the Government about that and other aspects of the system, such as the long waiting lists and the exclusions, which I am sure my colleagues will deal with. Every speaker has endorsed the making of changes to provide for cases of public interest and funding by third parties except the representatives of the board. Has Mr. McDaid a view on those issues?

Mr. John McDaid

Have I a view on third party funding?

Mr. John McDaid

That is not an issue that is necessarily on our desks or to which we have given thought at the moment.

As has been said, this is a legal aid system and is not free. It is there and it came from the Airey v. Ireland case.

Mr. John McDaid

It came from that case and the Pringle report.

That is correct. It was put on a statutory basis in 1995.

Mr. John McDaid

That is correct.

Despite the best efforts that have been made, it is very restricted.

Mr. John McDaid

No jurisdiction has a completely unrestricted civil legal aid scheme. Every jurisdiction takes a different approach and has some element of restriction on availability within it. It is very hard to compare with other jurisdictions because of the ways different jurisdictions, and their court systems, work. There are obvious restrictions and I hope I have alluded to some of them.

Mr. McDaid did refer to some of them.

Mr. John McDaid

There is a restriction, for example, on courts or tribunals that are not named in the Act or prescribed by the Minister. If someone has an employment law case and wishes to go to the Workplace Relations Commission, no legal aid is available for cases before-----

Perhaps I am being unfair and it is not Mr. McDaid's role and I should direct these matters to the other speakers. To have a healthy, functioning democracy, we need efficient access to the courts so that justice can be administered and be seen to be administered. There are delays with many causes, including the absence of judges and insufficient barristers and legal staff. Fundamentally, the costs also determine who gets access to the court and who does not. I have focused on the Legal Aid Board but it clearly does not have that role, or is not using that role, which must be filled somewhere else as it was by Ms Airey and the legal team who had the courage to take the case with her in 1979.

I will come back to Ms Barry. Is FLAC 50 = this year?

Ms Eilis Barry

We are 50 years old this year.

Is something else 40 years old?

Ms Eilis Barry

The civil legal aid scheme has been in existence for 40 years. It is also 40 years since the judgment in the Josie Airey case.

It is ironic that she did not qualify for legal aid at the time. She secured employment and had to fight another battle to get the aid.

Ms Eilis Barry

My memory is that she was given legal aid when she applied.

She was, eventually. FLAC is calling for a root and branch review.

Ms Eilis Barry

That is right. When the legal aid scheme, through the Legal Aid Board, was set up, it did not reflect what the Pringle report recommended and it was set up on a limited basis. It has proved extraordinarily difficult to convince the Oireachtas that legal aid needs to be invested in, as do the courts. There has been incremental change but it is very hard to get substantive change in the provision of legal aid.

It is similar to failing to deal with mental health issues and violence generally in that it costs the economy in the long term. The figures in this area are significant. The figure thrown out for domestic violence is €2 billion. Ms Barry is making the similar point that it would be cheaper, or certainly more cost efficient, to provide an appropriate service because, one way or another, it costs the State because money goes to health services, prisons or somewhere else. The Dáil has not reached the point where it analyses both the cost of failing to provide a service and the cost of providing a service.

Ms Eilis Barry

No research has been done to date. People contact FLAC with a variety of legal issues and, if we were to solve them all, there would be an obvious and considerable personal gain for those people but if housing and homelessness can be solved, it will have a positive impact on these people's social inclusion and the cost to the State. We are very anxious that it would be seen as necessary and critical to social inclusion that we target all of people's problems rather than just family law, as the Legal Aid Board does very effectively. It does not make sense to us that the board is not also able to represent people in their social welfare appeals, or their eviction if that is happening at the same time. Limiting action to a particular part of the problem is not the best use of our limited resources.

My final point relates to regulatory impact, which came up during discussion of the fines legislation when the Courts Service was before us. No regulatory analysis had been carried out of the impact of the fines on the courts system and resources. Did Mr. McDaid find that in relation to the most recent legislation on conveyancing?

Mr. John McDaid

I am not aware of anything. We were not furnished with a copy of any regulatory impact analysis in terms of the impact of the legislation.

What is the name of that legislation?

Mr. John McDaid

It is the Land and Conveyancing Law Reform (Amendment) Act 2019.

The purpose of the legislation was to ease the burden on people who were in trouble with mortgages.

Mr. John McDaid

In effect, that Act requires the court to take account of certain issues when people are facing repossession proceedings.

There was a list of considerations a court must take into account.

Mr. John McDaid

Yes, that is correct. The court must take a list of considerations into account before making a repossession order.

How is that Act being implemented?

Mr. John McDaid

We apply a merit test to applications, as Ms Barry indicated earlier, in terms of applications for legal aid for repossession proceedings. In the past, many applications were refused on the basis that there was no legal defence to the proceedings. We did contemplate that in the light of this legislative amendment there was more substance to a potential defence or that more arguments could be made in terms of defending repossession proceedings. FLAC and other NGOs are very aware of the situation and in many ways prompted the legislation. We had anticipated that we would get significantly more applications for legal aid in the light of the legislation but we have not done so far. The legislation was only commenced in late July.

Yes, it was commenced in July. Anecdotally, I have been told that people are not aware of the legislation. They are not aware of the possibilities, limited and all as they are.

Mr. John McDaid

Coming back to the issue of gateways for people who might seek legal aid, they would be the likes of FLAC, the Money Advice & Budgeting Service and Citizens Information. We have discussed this legislation with them and shared with them what we believe are the potential impacts of the legislation on legal aid.

I have a difficulty with this. In theory, it is good legislation. Likewise, in theory, the 1995 Act was also good, but it is not being used efficiently. People are not aware of the legislation. There is a gap in making people aware of it. When legislation is introduced, what is the impact on the Legal Aid Board in terms of extra staff and resources?

Mr. John McDaid

Any legislation such as the Land and Conveyancing Law Reform (Amendment) Act, that has the potential to significantly increase the demand for our services, is clearly going to have an impact.

Where was that discussed with the Legal Aid Board? What is the format for discussion when legislation is being introduced? I use the example of the Land and Conveyancing Law Reform (Amendment) Act. Does the Government provide a format or does the Legal Aid Board?

Mr. Philip O'Leary

I might just come in on that point. I agree with Deputy Connolly. I have said before publicly that we are very good as a Legislature and we pass very good legislation in this country, but we are not so good at putting the resources in place to deal with the legislation. The Legal Aid Board is the recipient of change without necessarily having the extra resources to deal with it. When I came into the Legal Aid Board in 2011, we had waiting lists of 5,000 people. We spent a lot of time working on those waiting lists and over the years, even up to last year, we were reducing the number on a consistent yearly basis down to approximately 1,600. This year, it is going back up again because of the issue Mr. McDaid raised earlier about recruitment and resources. As I said publicly - I have said it before - we are not sufficiently resourced in terms of the type of outreach work that we could or would like to do. As Ms Barry said, we are probably the biggest family law practice in the country and the biggest childcare practice in the country. We hold ourselves up as best in class in terms of the service that we provide. To be fair, people recognise that, but in reality we do not have the resources to reach all needs.

I welcome Mr. O'Leary’s bluntness, but that is the kernel of the matter and we are only looking at one aspect of it. I did not come to barristers yet. I have run out of time. It seems to me that the Legal Aid Board must have a role in deciding whether legislation is good and is needed but also in outlining that there are implications and that the Government must carry out a regulatory impact analysis of its consequences. There must be a role for the Legal Aid Board to highlight that this is not happening. Otherwise, it will continue in a very restrictive role of providing limited legal aid which is not meeting the need.

Mr. Philip O'Leary

Yes. I agree with the view that if we keep doing the same things, we will not get a different result. Our difficulty at the moment is that we spend almost all of our time trying to cope with waiting lists and trying to deal with the current need. Recruitment is a big issue that is affecting us. Not only do we find it difficult to compete with the private sector in terms of recruitment, which we do not want to do, but we cannot compete with the public sector either. That is impacting on how we do our business.

I appreciate that. As a member of this committee, I am more interested in providing feedback to the Government to identify the gaps. Is that information coming from the board? Is it highlighting the issues? Where can we see that they are being highlighted?

Mr. Philip O'Leary

The Department shares relevant draft legislation with us and we are able to engage with it on that.

No, I am talking about the impact and consequences of the legislation.

The impact of legislation on its passage, not in draft form.

No, I mean when legislation is enacted. There is no uptake on the new Act, just like on the 1995 Act. Where is the feedback so that we can learn?

Mr. John McDaid

There is no formal engagement. We are not asked to carry out a formal regulatory impact analysis in terms of legislation that might impact on legal aid but there is discussion. If we feel that legislation is likely to have an impact on our services and what we do, we discuss it with the Department.

I thank the witnesses.

I thank Deputy Connolly for that forensic address of two of our four groups. Taking the lead from Ms Ryan and Mr. O'Leary, the witnesses should feel free to comment in response to any questions from members if they have any additional information to offer. I thank Ms Ryan and Mr. O'Leary for doing exactly that. The floor is open to everybody. No doubt, others will get a chance.

I thank the witnesses for coming in and giving us very detailed submissions that we will find very helpful. I acknowledge the role that solicitors, barristers, FLAC and the Legal Aid Board play in facilitating people to gain access to justice in this country. At this time, almost 11 a.m., throughout this country in District Courts, Circuit Courts and High Courts, people find themselves before what can be a very intimidating court system. Without the help of people such as the witnesses, I think people would find the system impossible. I acknowledge the role all of the witnesses play in that regard.

Sometimes, unfortunately, the interests of lawyers get conflated with the interests of the people who are before the courts. It is very important for this committee that we put at the centre of our deliberations the person who is trying to access justice. Let us leave to one side all the issues about the interests of lawyers. I know there are representative bodies present and they are obliged in many respects to represent the interests of their members, but let us put the person at the centre of this discussion.

I will focus first on the criminal context because the State seems to play a greater role in criminal law than it does in civil law. All the witnesses can feel free to respond but I am aware that Mr. Ó hUallacháin is someone who has worked in the criminal area and he might be helpful in that regard. When one looks at a person who wants to access justice in the area of crime, one has a victim of crime who will go to the police and then a file will be sent to the Director of Public Prosecutions for the prosecution of the case. Then one will have an accused person who will want to be represented. I know there are issues about the amount of moneys that are paid, but leaving that aside, from the point of view of the victim of crime and the person accused of the criminal offence, are they being provided with effective access and protection in the justice system?

Mr. Seán Ó hUallacháin

My expertise is not primarily in crime.

I beg Mr. O hUallacháin's pardon.

Mr. Seán Ó hUallacháin

I think within the resources that are there, lawyers, be they solicitors or barristers, do the best they can. There is an ongoing debate, as Deputy Connolly indicated, about how victims are dealt with. Whether it is civil legal aid or the criminal legal aid, there are deficits in provision. While budgets alone do not resolve it, one does need enhanced resources.

I certainly think there is room for significant improvement in staffing and proper victim support or resource people. Other agencies might be more familiar with this than I would be, but I certainly think there is room for significant improvement. In respect of the Bar's involvement, as Mr. Dignam outlined in our opening and as outlined in our submission, there is an acute problem building up where we find that up to 70% of those practitioners who start out in criminal law are gone by year six. That is primarily down to what Mr. Ken Murphy called borderline economic pay rates. In the future, that probably also will be reflected in criminal legal aid solicitors but there is an emerging problem there and that is not just a problem for the Bar. It is a problem for the Bar at the moment. We have young members who are desperately keen to work in that area, who have a vocational commitment to it, who have trained up for it and who would love to stay in it. It is just not economically viable, however. That is something that will rebound on not only the accused they are representing but possibly even also the victims, because the whole process will slow down, albeit perhaps not to a standstill. It may not happen tomorrow but if this trend continues, we will find we do not have adequate solicitors and certainly not adequate counsel to represent people.

Does Mr. Murphy want to come in?

Mr. Ken Murphy

I note Deputy O'Callaghan mentioned the conflation at times of clients and lawyers and this may be a problem because those who are accused of crimes tend to be unpopular figures in society. Various Ministers have said to me over the years that there are no votes in giving more money to criminal legal aid. If the Chairman will permit me a slight moment of levity, it makes a point. Many years ago, a survey was carried out by our counterpart organisation, the Law Society of England and Wales, about public attitudes to the funding of the criminal legal aid system. It was a full professional survey and the question essentially was whether people who are accused of serious crimes and who have no financial capacity to defend themselves should be provided with a legal solicitor or barrister to represent them and defend their interests at the expense of the taxpayer. The answer, properly analysed, was the public felt yes such a person should, if he or she was innocent. I am making the point somewhat ironically but it shows that there is a degree of ambivalence in the public mind about the funding of criminal legal aid and one only has to listen to a radio phone-in programme on this topic and there is criticism of it.

While I take the point Deputy Connolly made about having a healthy democracy and an independent and strong Judiciary and what these measure in society, I would like to emphasise criminal legal aid a little and echo what has been said by the Bar, which is there is a real problem at the moment with the funding of criminal legal aid. The Law Society in its submission read out by the president a few moments ago, has a phrase we have used in submissions to Government. The phrase we have chosen is, "borderline uneconomic for the provision of criminal legal aid". The firms that specialise in it and the firms that do a certain amount of it are just simply questioning whether they can continue to do so. In neighbouring jurisdictions, like we have seen in England and Wales, there are now parts of the country where a far more generously funded criminal legal aid system is also becoming borderline uneconomic for certain providers such that the phrase that is used is "legal aid deserts". There are big geographical areas in England and Wales where no solicitor participates in criminal legal aid because of the funding issue.

Again, the Law Society has explained the consequences of the cuts that took place. We accepted the cuts that took place at the time of economic crisis in the State. In 2009, 2010 and 2011, I sat in meetings with the then Minister for Justice and Equality, Alan Shatter, and he explained the public finances and the need for the cuts. We did not protest the cuts, which were quite severe, and much more severe in the criminal legal aid system than in many other areas of State services. The figure we said was 26% but in fact, calculated in different ways it could be measured as being up to 40% and the Bar had other figures. Those were really severe cuts. There has been absolutely no restoration. While the State has restored funding to many areas where there were cuts during the economic crisis, there has been no restoration here. The Law Society has made representations to the then Minister for Justice and Equality, Frances Fitzgerald, and the current Minister for Justice and Equality, Deputy Flanagan. There is sympathy for the case that is made. There is recognition that it is becoming uneconomic. I am looking at the public interest and not the interest of the profession in this regard if lawyers cease to practice in this area. The people who do a lot of legal aid in the solicitors' firms cannot retain staff. They are transferring to other areas where they are paid better with better lifestyles, instead of going out in the middle of the night to Garda stations and spending endless hours there, They also spend endless hours, for example, on another feature nowadays, which is the review of CCTV. Hours and hours of CCTV have to be reviewed by the solicitor as part of his or her preparation of the case. That is not funded or paid. It is a rate per case and there is no funding of that.

I will just finish on this point. In the neighbouring jurisdiction of England and Wales, they have been able to document one consequence of this, which is the age of the cohort of the profession that provide criminal legal aid is increasing all the time. I think they said 49 years old is the average age in England and Wales. We have not done that research here but it is because young lawyers are not going into this work or, if they go into it, are not staying in this work. That has consequences for the future of the entire scheme and we believe that unless there is funding and the capacity to address funding of the scheme and to make it economic again for solicitors to provide it, there will be long-term problems in the delivery of criminal legal aid in this country, which is one of the measures of our status as a democracy.

What the witnesses are both saying is that the failure to adequately fund the criminal legal aid system will have an impact on access to justice for individuals. Forget about lawyers.

Mr. Ken Murphy

Absolutely, yes. I am making this as a public interest point.

On the other side - I know there is no one here from the DPP's office - but is anyone aware of whether funding of the DPP's office is preventing the prosecution of offences? That obviously is an issue that would be important for victims of crime. Maybe it is something we have to pick up.

Ms Ciara Murphy

The DPP is very sympathetic. I think the office of the DPP tries like every other State agency to do the best within the resources that is given to it at any particular time and it certainly goes out annually to replenish its panels of counsel to represent the DPP in court.

Okay. Is anyone aware of whether the DPP's office is deciding not to prosecute offences because of a concern about costs? That would affect a victim's access to justice.

Ms Ciara Murphy

A few experiences that the DPP has had recently and shared with us have been around being unable to secure counsel to undertake particular cases and that relates back to the cuts that were applied.

Can we now move to the area of civil law? Obviously, the State does not have as much involvement in the whole area of civil law, because it does not fund it the same way as the State funds the prosecution of all criminal offences and it funds to a large extent the defence of criminal cases. In civil cases, it is different, although the State plays a big part in civil litigation. I do not know what Ms Barry would think of, if she had a wish list in FLAC. What group of people does she believe is being denied access to the justice system because of the failure to fund a civil legal aid system? Is that a fair question? For instance, one can look at people who want to go to the Residential Tenancies Board or the Workplace Relations Commission, WRC. They are all forms of access to justice, although they are not courts, for example in family law.

Ms Eilis Barry

One can look at it within the cohort of the scheme that is there and people who cannot access it even for the family law but then one can look at it from another point of view. It is very hard to identify one particular group and say they are the people who are most denied access to justice but we have in the past provided services for members of the Traveller community. We are running a clinic with the assistance of the Department of Justice and Equality for the Roma community. We see huge, unmet legal need in the area of housing and homelessness. I believe that in the independent law centre movement, there are almost ten law centres out there now and all of us could spend all of our time doing housing and homelessness cases and we would just be hitting the tip of the iceberg. There are issues we are almost afraid to take on because we believe the need is so great and that would be in respect of people with disabilities and their families. There is huge, unmet legal need in those areas, which is where the exclusions become really critical, because there is no legal aid if, for example, one wishes to bring a claim that one has been discriminated against on the grounds of one's disability in education.

It may sound like the exclusions do not matter, but they do because they affect discrimination, including housing discrimination in education. They are all excluded at present so they are-----

I would have thought a major barrier to access to justice, before one even gets to speak to a lawyer, is just trying to have knowledge or awareness that a law may have been breached.

Ms Eilis Barry

Absolutely. That is why we are advocating that the Legal Aid Board be given resources and the function of providing information. As Deputy Connolly said, if people do not know about the impact of the Land and Conveyancing Law Reform Act, they will not be able to avail of those provisions. It is, therefore, important that someone, be it the Legal Aid Board, or the board together with the Citizens Information Board, be given the explicit function of providing education on legal rights.

I do not know what level of awareness Mr. McDaid, Mr. O'Leary or Ms Ryan believe there is of the availability of civil legal aid among the public in general. Are most people who come to the Legal Aid Board well informed, having met solicitors first?

Mr. John McDaid

There is a range of gateways into our system. I have no doubt but that many people are not aware of civil legal aid services. We work with the likes of the Citizens Information Board, the Money Advice and Budgeting Service, FLAC, Community Law and Mediation and various other NGOs that we see as potential information gateways. They can give information about our services to potential users. There is a statutory provision in our legislation that refers to us providing information about our services, but that is a balancing act in that we create a demand that we then potentially have a lot of difficulty meeting.

The following comment is directed at Ms O'Boyle and Mr. Murphy. The vast majority of people who gain access to the justice system do so through going to solicitors who are prepared to evaluate whether they have a claim, and that if they do and the solicitors believe in it, they take the claim on the basis of a no foal, no fee arrangement. Is that correct?

Ms Michele O'Boyle

Yes, that is certainly the case across the board. As lawyers, when we meet our clients, the first thing is obviously to evaluate the claim. If we feel it is a statable case, we evaluate it and take it on a no foal, no fee basis in the public interest.

Mr. Ken Murphy

Sometimes people query the no foal, no fee process, but we view it as essentially an issue of access to justice and as entirely benign. Solicitors will not take a case - or are highly unlikely to do so - in which they do not believe or in respect of which they do not believe in the legal merits or the prospects of success because they know that if the case fails, they will not be paid. Clearly, then, the process screens out unstatable cases such that only relatively strong cases are ever initiated. In reality, the process is a substitute for the absence of legal aid because most people could not fund cases themselves.

The following question is directed at Mr. Dignam. When a client goes to a solicitors' firm, the solicitor takes the case on a no foal, no fee basis. Can a financially weak litigant get access to a good barrister to present his or her case?

Mr. Conor Dignam

Absolutely. I referred to most of the landmark constitutional law cases or public interest cases - and this can only be on an anecdotal basis - which were in fact no foal, no fee cases brought by the most experienced and expert barristers. I was struck by what Deputy Connolly said in a question to one of the other witnesses, that is, that the Airey case was brought by the brave Ms Airey and her courageous legal team. That is what this boils down to: it required a brave litigant and a courageous legal team to bring a case on a no foal, no fee basis because there was not an adequate civil legal aid system to bring the case on the basis of State support. That is what is fundamentally inadequate about our access-to-justice principles and system.

My assessment of the matter is that the public is entitled to an efficient justice system that provides them with prompt access to that system and gives them a fair hearing and a reasoned decision that is not too costly. People recognise that if there are lawyers representing people in court, they will be paid. However, we need to look at making the system more efficient. There is too much in the civil area. There is too much control by the parties themselves of the litigation. The State needs to play a much greater role in determining when a case will be heard, expediting it, having procedures to strike it out at an early stage if it is evident it will not win and just taking more control of it, as opposed to the present situation whereby the parties probably have too much control as to how the case meanders down the road. I do not know if any of the witnesses have any comments to make about that.

Mr. Conor Dignam

We have touched on one of the headline issues. According to the World Bank survey to which reference was made, one area in which we scored poorly was case management. The point the Deputy made is that there is a greater need for case management to ensure efficiencies in the system, but that is also a function of the system being adequately resourced and having an adequate number of judges.

If anyone else had any other point or anything else they would like to share before we move on from Deputy O'Callaghan, they may do so. The Deputy could not have seen her, but I saw Ms Ryan looking to come back in earlier.

Ms Catherine Ryan

That is fine.

We will hear from both her and Mr. Murphy now.

Mr. Ken Murphy

I was prompted by a question from Deputy Connolly earlier about the impact on the economy and on society as a whole of the absence of legal aid and access to justice. I am heavily involved in the International Bar Association, IBA. Approximately two months ago, the IBA published a study of a number of different jurisdictions, not specifically Ireland, on how access to justice can diminish other costs to society at a later stage in the life cycle. I will happily supply a copy of that to the committee if it is interested in it.

Ms Catherine Ryan

I will make a point in answer to some of the questions being asked about information sharing and getting the message out about what is covered and not covered under legal aid. We live in a digital age. We have a well-developed website that people can access and that has an awful lot of information on it. It is a detailed website that sets out clearly the fact that we do not just cover family law. There is sometimes a perception out there that we only cover family law. In my law centre in Limerick, according to a quick analysis of the cases we have on hand, approximately 55% are separations or divorces; one eighth are other family law matters; another eighth are non-family law matters, which are quite extensive, ranging from probate cases to landlord and tenant matters to injunctions and lots of other issues before the courts; and a further 20% are childcare cases. We cover a wide range. My message as manager in Limerick, and I think many of the managers in the law centres have the same message, is that people should be encouraged to make the application. People will often ring and ask whether something is covered. It may require a lot of detailed analysis on our part to see whether it is covered under the scheme. I am not making an apology for the matters that are not covered, and I accept the points made by Ms Barry and others about certain matters that are outside of our scope, but there are certainly an awful lot of matters within our scope and that the public are not aware of at times.

Before I turn to Deputy Pringle, and in case I lose any more members, I wish to offer an invitation. We are dealing with a substantive public address today and on 11 and 18 December. It is our custom to have a photograph taken with all the witnesses and members at the end of each session. Rather than the Chairman being left on his own, I would like colleagues to hold fast. I see an empty bench and it is starting to concern me. Deputy Pringle has the floor.

The Chairman should have said that earlier. Perhaps he would have held on to more of us. We will never turn down a photo opportunity.

Many of my questions have probably been asked, which is good. It is a benefit of coming to the meeting late. One of the main issues is that nothing seems to be analysed in cost terms. It is something I have noticed as a new member of the committee. We are great at bringing in legislation, and we probably have a very good suite of legislation by international standards, but we are appalling in respect of implementation and reviewing how our legislation is working. Perhaps this is because we can bring in legislation that looks good and get the PR and so on from it and no one ever looks afterwards to see what happens to it.

I want to try to get to the Legal Aid Board, which is going to get a bit of stick since it is the only public body present. I was a bit sympathetic towards it until the last question, when the witnesses said that they do not want to create demand by actually looking at how things are working.

Mr. John McDaid

I would say there is a balance. Ms Catherine Ryan spoke about our website. I spoke about the level of engagement that we have with the bodies that I would see as being gateways to our civil legal aid services. In other words, those are the bodies on the ground, such as the Citizens Information Board, that people will go to if they want to find out what they can do about a legal problem.

Creating demand is what the Legal Aid Board should be about. Mr. McDaid has to manage within the restrictions of the board's budget and I have a fair bit of sympathy for that. Having a good website is a very static, passive thing. I think I have a good website. People will not naturally come to my website to find out what is happening just because it is there. It is clear from what Mr. McDaid has said that he does not really see it as the board's role to look at how things are performing or to report back on how it is working.

Mr. John McDaid

We have constant lines of engagement with the Department of Justice and Equality. We have performance and oversight agreements and are regularly in conversation with it about issues and resources.

Issues and resources is a different matter to how legislation is actually working and whether it is achieving what it wants to achieve or whether people are acting on information. There was the case relating to sexual offences. I think four people in 2004-----

Mr. John McDaid

There were very few.

There is no analysis of that from anywhere. The Legal Aid Board is the public body here but nobody from the Department of Justice and Equality or elsewhere is looking at that.

Mr. John McDaid

I am happy to take that point away and look at more formalised mechanisms of us talking to the Department about our experience of some of the legislation, especially some of the new legislation.

We will tell the Department that it should be looking at it too because it is not. Who is the person who should be looking at this or which body should do this? I do not believe that it should be the Law Society, the Bar Council or the Free Legal Advice Centres because that is not their role. Maybe the Department or the Legal Aid Board should be. Somebody should be looking at it. One thing that has to come out of our hearings here is some structure about how things are looked at. Rather than bring in more laws in future, we might look at how the laws we have are working and change how they work instead. Maybe people have suggestions.

Mr. Philip O'Leary

I am the chairperson of the Legal Aid Board. I see the function of the statutory board as trying to be forward looking about what we can do in the future and not just repeating what we have been doing over the 40 years, during which there has been very good work. We are trying to look at other areas. Access to justice is not all about access to the courts. We are trying to improve the mediation service. We are trying to improve co-location and are looking at opening a co-location office in Letterkenny next year. These are new, innovative ways of trying to get people to access justice and they are very important. I do not want to harp on about resources all the time but it is very difficult to make progress in new areas. One of those areas is education and telling people about their rights and how to access those rights. FLAC does a fantastic job in that arena. We are hamstrung to a significant extent because we are trying to deal with the current demands on our service and staff. The staff are stretched, including professional staff, mediators, solicitors and administrative staff. We deal with people who are often at a very vulnerable time of their lives when they are under extreme pressure. If it is a case that Tusla is trying to take a person's child from that person and we are the first-line defenders, that is a traumatic situation. Ms Ryan might be able to talk about that more than me with regard to the actual situation on the ground. That is what we deal with daily and where our oxygen goes most of the time. We do not have much left in the tank with regard to other innovations that I and the board would like to pursue for access to justice.

It is not even a matter of other innovations but saying what Mr. O'Leary has said just now in a suitable format. I do not know if he needs to say it to the Department of Justice and Equality or who the right people are.

Mr. Philip O'Leary

We try.

That has to be said very loudly in public so that everybody knows. We have a role in making sure that the board is capable of doing that. We in this committee have to hold Government to account.

Mr. Ó hUallacháin might like to come in briefly and maybe Ms Ryan would like to take the ball passed by Mr. O'Leary and come back to Deputy Pringle.

Mr. Seán Ó hUallacháin

I think Deputy Pringle's questions and observations have validity, as noted earlier by Deputy Connolly, and I would not take away from that validity at all. If I might address matters in the public interest, not just from the Bar's point of view, it is important to not come down too heavily on the Legal Aid Board. It performs a very difficult exercise, as its chairman has just said, with limited budgets and stretched resources. I, as a barrister who used to practise in that area, know that only too well. I think one would find it hard to find a barrister who has worked with the Legal Aid Board who would say that the staff, solicitors and support staff are anything but excellent and that they do their best in very trying circumstances.

I am sorry to cut across Mr. Ó hUallacháin but I am not coming down on the Legal Aid Board simply because it is the Legal Aid Board. I am highlighting the fact that there is a lack of information made available by people who have a responsibility to make it available. It is not a personal attack on anybody.

Well clarified. I would not read that as being the interpretation of Deputy Pringle's contribution.

Mr. Seán Ó hUallacháin

I am not suggesting that Deputy Pringle is making a personal attack. I am trying to say that it has to be looked at with regard to wider public interest. The Legal Aid Board performs a difficult function. If I criticise the Legal Aid Board, it is more a criticism of the paymaster, that it needs more resources. The staffing issue has already been identified. It requires financial resources and buildings. This committee has dealt at length with the family law issue and the crying need for the Hammond Lane building, for example. When we deal with Dublin, resources outside of that must be addressed. All of the agencies here and the others that will come before the committee in due course have a role in this regard and we can act as catalysts in the way that we deal with our own client base and how we interact with the Legal Aid Board. This agency is often engaged in firefighting and trying to control a situation. We need to note that in the public interest. If anything is to come out of the deliberations of this committee on legal aid, I hope it would be that there is a crying need for far greater investment. Mr. Ken Murphy has already adverted to the World Bank and International Bar Association survey, and that there are other downstream economic benefits from legal aid. We have also highlighted that in our submission. One cannot take the Legal Aid Board and its responsibilities in isolation any more than one can take costs in isolation. There has to be a holistic picture of how we deal with this and how Irish society develops, not necessarily in the interests of my members but of all of us as a society.

I think Mr. Ó hUallacháin can be assured that we will take a holistic view of all of the elements involved in the dual focus. Would Ms Ryan like to come back in? Deputy Pringle has already eased off because Mr. O'Leary has indicated that the Legal Aid Board is coming to Letterkenny some time in the new year. The point was not lost on me. Well fielded.

They did not say what year.

I definitely heard 2020.

Ms Catherine Ryan

The only point I wanted to make, as Mr. O'Leary and Mr. Ó hUallacháin have mentioned, is that the work that we do on public interest cases and childcare cases is among the most important work that we have. It takes up much of our time. On our last analysis in Limerick, defending those cases took approximately one third of our time. Some 60% of our available court days since the start of this year have been spent in the children's courts, defending those cases. They are important cases that should rightly take up much of our time. Those clients are very vulnerable. I am echoing that the service that we provide there is very important for access to justice. I will echo what everyone else is saying today about the issue of resources. My input as a solicitor on the board is to ensure that we are providing a quality service, which needs to be resourced properly.

Many of those childcare cases are very complex and various different reports are needed from professionals. We need to be able to resource those so we can do our job properly, given it is a very important job that we do in the childcare arena.

Ms Eilis Barry

I re-emphasise that we are keen that the Legal Aid Board should have an educational function, which it currently does not have. It is not a given the task of going out and advertising the fact people can get legal aid in respect of the Land and Conveyancing Law Reform Act. It is also very important that when socially protective legislation is introduced, the Oireachtas would carry out a legal aid audit before it is passed so some cognisance is given to what impact it will have on the Legal Aid Board. For example, there has been a lot of talk about the Land and Conveyancing Law Reform Act. Potentially, well over 10,000 people may now be entitled to legal aid and, if that was to be advertised, it would bring the Legal Aid Board to its knees. While it is useful legislation that we advocated for, we also advocated that the budget of the Legal Aid Board would be increased to be able to deal with the demand, and that did not happen in any shape or form. If we are going to have education, which we would welcome, there has to be an audit and the resources have to be targeted at the Legal Aid Board.

That is what I am trying to get at. I am trying to tease out is whose responsibility this is. Ms Barry stated the Oireachtas has a role, and I take that on board. We have a role, as does the Department of Justice and Equality. The Legal Aid Board also has a role, although, unfortunately, it is not resourced to do it and is dependent on the Department for that. This is vital. We have no analysis of the measures we are bringing in and even the Land and Conveyancing Law Reform Act should be reviewed to assess the impact it is having and the potential costs, so we can see how the system works or does not work, as the case may be.

With regard to how the system works for people with disabilities, according to the National Disability Authority, people with disabilities face barriers in access to justice and reporting crimes, as well as within the court system and after a trial. Do the witnesses have data on how the system deals with people with disabilities? Do they train their employees to deal with people with disabilities? What special measures would they recommend for people with disabilities?

Was the Deputy directing his question at anybody in particular?

It was to everybody.

Mr. Conor Dignam

The short answer is that, structurally, the courts system and the legal system do not deal properly or adequately with people with disabilities, do not cater for their disabilities and do not make reasonable accommodation for them, unfortunately. For example, courtrooms are frequently unsuitable and inaccessible, so a lot of work needs to be done. In terms of what goes on in the court and how a person with disabilities would be dealt by judges, for example, they make every effort possible to deal appropriately and adequately with persons with disabilities within the confines of unsuitable accommodation. A lot needs to be done.

From the point of view the Bar - and Ms Murphy may be able to talk about this in greater detail - we recently had some training and education to upskill our members on dealing with vulnerable witnesses, and that includes witnesses with disabilities. That is an ongoing process as it has to be for all of us.

As this was one of the questions I was going to focus on at the end, perhaps Ms Barry would elaborate on the online court point that is made in her opening statement, in tandem with Deputy Pringle's question?

Ms Eilis Barry

Absolutely. We provide a more detailed submission with our statement. On pages 29 and 30, we have set out the recommendations we have made to the Review of the Administration of Civil Justice in regard to people with disabilities. There are quite a number of recommendations, from engaging in routine data gathering and monitoring, accessibility of the physical space and what the Courts Service needs to do to provide for people with disabilities. We have recommended that an access officer be made available to assist people with disabilities and that court documentation needs to be in an accessible format, which it is not at present. We recommend that Wi-Fi needs to be available in all courtrooms, the Courts Service needs to work with people to improve accessibility, the website needs to undergo periodic accessibility testing for people with disabilities and all legal documents need to be available in accessible formats.

Ms Malone works with PILA, the Public Interest Law Alliance. Through PILA, Robbie Sinnott was involved in High Court proceedings seeking access to a secret ballot. Throughout the hearing, which lasted in excess of ten days, PILA had to attend the court simply to provide support to Mr. Sinnott, who has a visual impairment, to get around the court system. There is no proper provision for people with disabilities to access the court services. He was being cross-examined during the hearing with regard to documents that he could not access, and there were huge delays in getting documents from the State in a format he could access. They are very basic steps that need to be taken.

It is important to remind the committee that both the Courts Service and the Legal Aid Board are under a statutory obligation to promote equality under the public sector duty under section 42 of the Irish Human Rights and Equality Commission Act. They are obliged to have regard to the needs of people with disabilities and to look at what steps they can take to improve accessibility for people with disabilities in the courts. I hope the review of civil justice will look at people with disabilities in particular and will take on board some of our recommendations.

In regard to online services, people with disabilities may find it easier to access an online court. We had a conference in May, where Lord Briggs, who was involved in a report on online courts in the UK, came over and, together with Andrea Coomber, gave a practical demonstration of how an online court would work. I have to say I was amazed at how easy it was in practice. It would be easier than booking a Ryanair flight, which can be difficult enough, and I was shocked by how easy it was. It is time to look at that. Obviously, there would have to be safeguards. Ms Ryan referred to how the board's website is accessible. It has to be recognised that many people who come to FLAC would have literacy and language problems, and would not find websites or online services accessible. However, it is a resource that is there. There is quite a cohort of people who are at ease with using technology, so it is something that needs to be examined. Having said that, the Courts Service as it stands, if it was to look to introduce an online court, would have to cut back on its other services. While we certainly recommend this, it would have to be properly resourced.

Mr. John McDaid

Virtually all of our offices are disability-compliant and we would make sure that any new premises we are taking are compliant with the disability legislation. Our website is compliant with the blind requirements. We have some training programmes around disability awareness, which is sometimes also linked in with equality awareness. We have a disability liaison officer and an access officer. Plain English is something we are committed to, although we can certainly do better than we are at the moment.

Ms Barry's point on section 42 is well made and it is something we are reflecting on. To pick up on one recent case that was in the news, a 96-year-old in a nursing home was the subject of proceedings. This might come back to the Deputy's earlier question on making people aware of our services.

It is something we are looking at more proactively in terms of people in those situations. How do we reach them? What is the level of our responsibility to be proactive in terms of engaging with them? We would be very engaged at the moment with Sage, which is an NGO representing people with disabilities, particularly elderly people. It is very much on the agenda.

I thank Mr. McDaid. I call Deputy Pringle.

I thank everybody for their responses. I have one final question on class actions. As a lay person, one sees how people have to go to such lengths to get their rights dealt with in the court system and through court procedure, and it only deals with that particular case. Somebody else coming along has to go through the same procedure. It is a very cumbersome and a wrong system for individuals to have to deal with. Could class actions be dealt with in a proper manner? What would be involved in making that happen and making it work in the justice system? If the witnesses could respond to that, that would be perfect.

Mr. Ken Murphy

When the Law Reform Commission report emerged, I remember participating in radio interviews. I think Senator Michael McDowell was the then Minister. The sense I get from the Government response to this, which is perhaps not surprising but consistent, is that it seems to be unenthusiastic about class action because the State tends to think that it would be frequently the defendant to class actions. I refer to the facilitation or encouragement of mass claims against the State in public health situations, for example. We have had obviously controversies and scandals and the requirement of each individual who might believe they have a claim arising out of the way in which a public health scheme has operated and the damage they felt may have been caused to them through negligence having to prove their individual case cannot be real justice. We believe there should be a better system. The class action system operates in other jurisdictions, but I have a sense that successive Governments may look askance at that from the point of view of economics rather than of justice.

We just have the wrong Government.

Ms Deirdre Malone

In the submission, there are some details and analysis on FLAC's position on multi-party litigation, but it is really important to stress that these are often cases where there is significant bargaining power inequality between the groups of litigants. These are cases where the cost of taking the case is simply prohibitive, but there is a power when one can bring people together and bring cases on the basis of a class action. FLAC has put in a submission on the multi-party actions Bill, which was introduced I think in 2017 and which of course is available. We have seen no progress on bringing forward that Bill, on looking at the particular provisions of that Bill and at the efficiency and cost effectiveness and on what kind of mechanism one can introduce to the system. Additional analysis of that multi-party litigation or multi-party actions would be very welcome.

Ms Malone has stolen my lines. I wanted to say exactly the same thing and to acknowledge Ms O'Boyle referencing the Bill in her opening statement on behalf of the Law Society. Like so many other Private Members' Bills that go through this committee, I fear it is up there floating around in the cloud. Money messages may be an obstacle to progress, but we are pursuing it. In the preparatory meeting yesterday for today's engagement, the secretariat and myself highlighted that is something we want to go after with greater resolve, if possible. Deputy Pringle, are you finished?

A couple of little things were not addressed. FLAC referenced a rigid and out-of-date means test. The Legal Aid Board spoke of how disposable income must be below €18,000 per annum. Are we talking about the same thing there? The first reaction is that that needs to be increased, but that might only add to the witnesses' workload, and without additional resourcing, it is a chicken and egg situation. We have to be very cognisant of that. It has to be addressed, but resourcing is the first requirement. Are we okay in saying that?

Mr. John McDaid

Yes, absolutely.

That is probably a line in the report already written. It is great to have consent.

The Bar did not mention it - it was not in Mr. Dignam's oral presentation - but the Law Society referenced the inadequate provision of judges. I know there a little history in this area going back, but why do we have such a low appointment of judges across the board? The statistic cited was 6% as against the international average of 22%. It is another element and it has not been raised. That is the only reason I am asking about it now.

Mr. Ken Murphy

In fairness to the committee, one has to differentiate between the civil and common law jurisdictions. True comparatives are probably to be found between the Irish system and other common law jurisdictions. The inquisitorial civil law system is much more judge-heavy, because the role played by the judge is much more proactive than it is in the common law system. The point was made that the burden on the parties is much greater in our system. I do not know if those figures were complied before the increase in the number of judges in the Court of Appeal, which we welcome. I remember then Chief Justice, Mrs. Justice Susan Denham, constantly referring to statistics, which I do not have to hand. She had statistics on the ratio of judges per head of population in Ireland compared to civil law and common law jurisdictions all over the world and it seemed to be very low. I often say the judge is in many respects the cheapest part of the whole system. Courthouses, staffing, infrastructure and technology could well be more expensive, and I think it is a false economy on behalf of the State not to appoint more judges, because there are economic consequences to delays in the justice system affecting "Ireland Inc." - the econony - quite apart from individual citizens and their entitlement to speedy access to justice. I have never fully understood the rationale of the State in underfunding judicial appointment levels, except possibly that creating more appointments would require more courtrooms and more infrastructure. We need that anyway.

Certainly, in the context of the joint Bar Council of Ireland and Law Society initiative, which has full Government backing, seeking to attract international legal business to Ireland, we cannot continue to operate with delays in our court system and expect to compete in this contested space internationally with other jurisdictions looking for a Brexit dividend as well. We have to invest in this, and that means more judges.

I thank Mr. Murphy. Mr. Dignam would like to respond.

Mr. Conor Dignam

I would echo an awful lot of what Mr. Murphy said. Obviously, members of the Executive would have to be asked why more judges are not appointed, but it boils down to a very simple point, which is if one cannot get a judge to hear one's case, one does not have access to justice. The imperative is to have a sufficient and adequate number of judges.

It was jumping off these pages. It was not touched on, so I said we had better bring that in. Would anyone else like to comment on that or, most importantly of all, is there any other point anyone would like to expand on or introduce, because we will not get the opportunity to engage again in this particular series? If there is anything that anyone wants to offer, please do so. I call Ms Murphy.

Ms Ciara Murphy

Could I pick up on a point Mr. Murphy made earlier? It is a very important point and one this committee is probably best placed to pick up on, which is probably utilising the World Bank IBA report to do the economic evaluation of legal aid. It is an excellent report that has looked at the economic value of aid in other jurisdictions. We cannot do this alone but if the committee or the State decided to approach it in that way, it would be a very worthwhile exercise to undertake and would help decision-making in the future in relation to legal aid.

I thank Ms Murphy for that. Does anyone else wish to comment?

Mr. John McDaid

No. There is some research relating to legal aid. This includes international research that we can probably link in with the committee and direct the committee to. There is some doctoral research, which is relatively new, called The Machinery of Legal Aid, which is informative. Ireland is one of the subject countries that is part of that research. Some Dutch research was carried out some years ago as well. It looked at comparisons that might be useful for the committee.

I thank Mr. McDaid. That concludes our first hearing in this series on access to justice and legal costs. On behalf of the committee, I thank Ms Michele O'Boyle and Mr. Ken Murphy from the Law Society of Ireland as well as Mr. Gilhooly, who was with us earlier. From the Bar Council of Ireland, I thank Mr. Conor Dignam, Mr. Seán Ó hUallacháin and Ms Ciara Murphy. From FLAC, we had Ms Eilis Barry and Ms Deirdre Malone. Thank you very much indeed. From the Legal Aid Board we had Mr. Philip O'Leary, Mr. John McDaid and Ms Catherine Ryan, who has probably travelled farthest today. Thank you for making the journey. Without any further ado, I invite you to join us for a photograph outside, if that is okay.

I remind members that at our next meeting we will have Ms Emma DeSouza and others coming before us referencing a very interesting case that she has been involved in.

The joint committee adjourned at 11.50 a.m. until 9 a.m. on Wednesday, 4 December 2019.