We are delighted to be here today with our colleagues from the Mercy Law Resource Centre and Professor Gerry Whyte and I thank the committee for the opportunity to speak. I am the CEO of CLM. We have two community law centres in Coolock and Limerick and currently assist more than 3,000 people every year through our range of services, which include legal advice and representation, information and education, and mediation and conflict coaching. It is fitting that CLM has been invited to present our views on the issue of access to justice given our origins. CLM, originally known as Coolock Community Law Centre, was established in 1975 as the first independent community law centre in Ireland. It originally served as a prototype of the neighbourhood or community law centre model which could underpin a nationwide civil legal aid scheme, which did not then exist.
The community law centre model, under which we operate, has a number of important characteristics. Our services are free and embedded in the community, making them as accessible as possible. Many of our information talks and legal advice clinics are delivered on an outreach basis in locations where the community is congregating such as parish halls, public libraries and community organisations. Local organisations and interest groups are represented on our board and advisory committees to ensure our services are responsive to, and shaped by, the needs of the community. Second, community education is a critical part of our work. Access to justice begins long before anyone steps inside the courtroom. It begins with creating an awareness of rights and the law, and how the law can be used to enforce those rights. In CLM, we often encounter a lack of awareness of how the law can assist in situations of homelessness or accessing social welfare, issues that are critical to social inclusion as they most affect a person's ability to participate fully in society. Third, the community is empowered to use the law through our legal advice and representation service. CLM currently partners with other organisations to provide more than 180 outreach legal advice clinics every year and our legal representation work is focused on areas of law which disproportionately affect those living in disadvantage, such as employment, equality, social welfare, debt, education and housing, all areas which are not covered by the State-funded civil legal aid scheme. Fourth, CLM campaigns for law reform, and for the safeguarding of rights enshrined in law. Our priorities for law reform are directly linked to the issues encountered in our clinics.
The right of access to justice is accepted as a constitutional principle and a right under the European Convention on Human Rights, ECHR. Without it, people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers accountable. It is a fundamental tenet of a functioning democratic society. In the absence of access to justice, challenging incorrect decisions or unfair practices by an arm of the State or other body would be more difficult, more distressing or just impossible, especially for vulnerable groups or at vulnerable times. Access to justice is vital for social inclusion and many of CLM's legal services are focused on areas which are critical to social inclusion, for example, preventing homelessness, assisting with accessing social welfare, education and other services, preventing job loss and challenging discrimination. Currently, the right of access to justice is being denied to many. Susan Gogan's research on unmet legal need in Ballymun in 2005 showed that 76% of those with legal problems had sought help but were unable to obtain it. Further, the community consultation process during the set-up of CLM Limerick in 2012 showed that community organisations rated the availability of legal services in their area as not good or bad and they had limited expertise in the areas themselves.
In my presentation, I will briefly address three points: barriers to accessing justice, limitations of civil legal aid and suggestions for reform, and structural barriers within the legal system itself. Barriers to accessing to justice were first identified by the Pringle report in 1977 and its conclusions were echoed in a report compiled by CLM in 2012, some 35 years later. These reports acknowledged that the obstacles facing those living in disadvantage, in need of legal services, are not just the cost and include intimidation of the legal world; inaccessibility of legal services; lack of awareness of rights and the law most relevant to disadvantaged communities, including among the legal profession; fear of not being taken seriously or of retaliation if legal action is taken; and time, including waiting times for legal aid and the time it takes for a case to be heard. Our practical experience is that these factors deter people from accessing legal services and that the best way to break down these barriers is through meaningful community engagement through the community law centre model.
My second point is on the limitations of the civil legal aid scheme. The effective availability of the services of a lawyer is a crucial element of access to justice. If someone cannot afford a private lawyer, the right to legal aid is an essential component of his or her right of access to justice. The Pringle report in 1977, as well as our 2012 community consultation report and Susan Gogan’s 2005 report, recommended that a civil legal aid scheme should offer legal representation for all types of civil legal proceedings and should have a legal education and law reform function. However, the civil legal aid scheme established in 1979 falls far short of these recommendations and as a result fails to adequately provide for access to justice. This is due to a number of factors, many of which were highlighted at this committee by the Free Legal Advice Centres, FLAC, two weeks ago. Those factors include the statutory limitations of the civil legal aid scheme itself. There is no logical reason the availability of legal aid should be determined by area of law rather than need, or why tribunals such as the Workplace Relations Commission or the Social Welfare Appeals Office should be excluded from legal aid. When an individual’s job or welfare payments are being threatened, there is potential for significant adverse consequences not just for that person but also for their family. Another issue is the overly strict means test, which is out of touch with the reality of the cost of living and which results in people on low incomes who cannot afford a solicitor being denied legal aid. A further factor is the under-resourcing of the Legal Aid Board, resulting in an average waiting time for a first consultation in Dublin of up to 38 weeks and up to 58 weeks in one particular office. This is simply too long to wait and it can cause issues for those seeking legal remedies with strict time limits, such as a judicial review, which has an effective time limit of three months. Finally, the current model of legal aid has not adopted a comprehensive approach to the provision of civil legal aid, as there are no links with disadvantaged communities and there is no law reform or public education function. Members of the committee can find further detail on these factors in the notes section of our submission.
The problems and limitations of the Legal Aid Board raise the question of whether the State is complying with its obligations under Article 6 of the European Convention on Human Rights and Article 47 of the European charter on fundamental rights and freedoms in cases involving European law. People of limited means with complex legal issues are unable to obtain legal aid from the State. That said, it is important to state that despite the limitations and under-resourcing of the service, CLM’s experience of working with Legal Aid Board staff and management has always been very positive. In fact, Mr. John McDaid and Ms Catherine Ryan recently delivered talks as part of CLM’s community education programme.
My final point relates to structural barriers within the legal system itself. In addition to the effective availability of the services of a lawyer, a crucial element of access to justice is effective access to the courts themselves. There are several barriers to accessing the protection of the courts, including the cost of filing fees, the complexity of the language used and the intimidating atmosphere of the courts. The courts system as a whole is not designed to cater for children or people with particular vulnerabilities or complex needs. To give an example, we recently represented a man with physical and intellectual disabilities before the District Court. He had difficulties with communication and comprehension and neither the barristers nor the judge appeared to have any guidance to follow on how to approach questioning him. His case was significantly hampered as a result. A further issue in this area is the delay in implementing reforms contained in the Assisted Decision-Making (Capacity) Act 2015. These reforms will help ensure that people whose decision-making capacity is impaired are afforded the fundamental human right of making their own decisions about their personal and financial affairs, as far as is possible. At the moment, however, the Victorian concept of wardship still applies through the Lunacy Regulation (Ireland) Act 1871. As a community law centre, we also encounter obstacles to taking public interest cases such as the absence of a class action mechanism, restrictive rules relating to locus standi and fear of costs. We often meet clients who have made a decision not to take a case to vindicate their rights because of the fear of a significant costs order should they lose the case. This occurred recently in the case of a woman who had a very strong legal case regarding the discriminatory provisions of the State pension scheme, which raised broader public interest issues.
Apart from the changes that need to happen, there is currently a threat to access to justice in the form of the proposed housing and planning and development Bill 2019, which I understand is due to be debated early in the new year. If enacted, it will increase costs exposure and make it more difficult for ordinary citizens and environmental NGOs to achieve the necessary legal standing to take cases challenging decisions which have an impact on the environment. Environmental democracy and oversight is protected by EU law and the Aarhus Convention and has never been so important as we grapple with the challenges posed by climate change.
We recommend first restructuring the civil legal aid scheme in line with the community law centre model to include a public legal education and law reform function. In the interim, greater funding security should be ensured for community law centres, such as CLM and Mercy Law Resource Centre, which continue to meet the need arising from the gap in services. Second, we recommend reviewing the civil legal aid scheme to ensure it is properly resourced and is provided on the basis of need rather than areas of law, and that the financial means test is more inclusive. Finally, we need to ensure effective access to the courts by examining issues such as accessibility, cost, class actions, and locus standi and protective costs orders, while bearing these matters in mind with the proposed housing and planning and development Bill.
I will conclude by paraphrasing the American attorney Kimberley Motley, who said that the laws are ours; that they belong to us and need to be used. If people do not know about their rights under the law, do not know how to assert their rights or are unable to do so without legal assistance, then those rights are not being protected.