I move:
That Seanad Éireann takes note of the Report of the Legal Aid Board 1983 and 1984; deplores the severe limitations of the Civil Legal Aid and Advice Scheme operated by the Board; and calls on the Minister for Justice immediately to review the Scheme in the light both of the Pringle Report and of the Airey judgment by the European Court of Human Rights and to introduce legislation, establishing a comprehensive Scheme of civil legal aid.
In moving this motion I am conscious that this is not the first time I have spoken in the Seanad on civil legal aid and it is probably not the last time. I welcome the presence of the Minister. I am pleased that the Seanad is to devote time this evening and next Wednesday to this important subject.
Legal aid is about justice. It is the mechanism by which we seek to ensure that people who cannot afford to pay for legal services have access to them. This motion has been tabled by Senator Catherine McGuinness and myself because of our deep conviction that the present scheme for civil legal aid and advice is inadequate, underfunded, badly structured and denies justice to many of our citizens.
As Senators will have noted there are several related issues raised by the terms of the motion: first, the report of the Legal Aid Board for 1983 and 1984 which was only published on 21 February 1986, secondly, the severe limitations of the civil legal aid and advice scheme presently operated by the board, thirdly, the need to review that scheme in the light of the Pringle Report and of the Airey judgment delivered by the Court of Human Rights in Strasbourg and fourthly, the need for legislation to establish a comprehensive scheme of civil legal aid.
I would like to start by referring to the fourth point — I want to emphasise it and I will be concluding on it — the importance of establishing by legislation a scheme of civil legal aid and advice. The present scheme is non-statutory. It is an administrative scheme which was introduced in December 1979 following the judgment of the Court of Human Rights in the Airey case. As Senators will recall the court had found that Ireland was in breach of two articles of the Convention, article 6 on access to a court and article 8 on protection of family life. When there was a debate in the Dáil subsequent to the introduction of that scheme, in April 1980, the then Minister for Justice, Deputy Gerry Collins indicated that it was his intention to place the scheme for civil legal aid and advice on a statutory footing as soon as it could be done. In other words in the interest of having a scheme up and running it had been decided to introduce it on a non-statutory basis. It is interesting to look at the first report of the Legal Aid Board, which is required to report annually. The first report in 1980 refers to the question of the introduction of a statutory scheme. I quote from the report, page 15, paragraph 13:
The present Scheme of Civil Legal Aid and Advice is non-statutory. It was introduced on an administrative basis in order to get a Scheme into operation with the least possible delay. Another consideration was that if experience suggested the need for change, the non-statutory Scheme would be easier to amend. The Board was informed, however, that the Scheme would be put in statute form at the first suitable opportunity. The Minister for Justice has asked the Board for its views on the question of introducing a statutory Scheme and these views will soon be conveyed to the Minister. The Board considers that the time is now opportune for putting the Scheme in statute form. The present arrangement gives rise to some uncertainty — for example, as regards the Board's own status — which will be removed only if legislation is introduced. For avoidance of any doubt, the Board would like to stress that the absence of legislation has had no bearing on its independence in dealing with individual applications for legal aid. The independence is built into the Scheme and has never been in question.
In the report we are considering in this motion the chairman of the board comes back to, and repeats, that request by the board. The chairman, Mr. Nial Fennelly, Senior Counsel, states in the foreword:
Unfortunately, what the Board has to acknowledge above all else, after five years of operation, is that the Legal Aid Scheme is still very far from providing the type of comprehensive national service that was envisaged at its introduction.
The problems with Civil Legal Aid are not confined to the issue of resources. This report adverts to various other matters such as a very restricted means test, with no proper periodic revision, and the embargo on recruitment of staff, both of which continue to depress the level of legal aid services provided.
Another matter of considerable concern to the Board — and one which has been repeatedly voiced by my predecessors and myself — is the need to put the Scheme on a proper statutory basis. It was certainly not the intention that it would still be a non-statutory administrative measure five years after its inception. The Board strongly urges the Government to give priority to the long promised legislation.
When we have finished our discussion of the detail of the problems in relation to the scheme of civil legal aid, I hope that there will be very strong support on all sides of the House for legislation to establish the legal aid and advice system. This is absolutely fundamental. It has been called for. It was promised in 1979 and early 1980 by the Minister who established the scheme. As yet it has not happened.
I now want to turn to a more detailed consideration of some matters in the report to try to summarise my assessment in the time allotted to me for this motion. Clearly, the board identify that the central problem still facing them is inadequate funding. We must understand the importance of committing funds in this area, if there is to be such funding. Nobody is under any illusions that this is a very difficult time. We heard today a depressing announcement in relation to an overrun on expenditure this year which means that anything that requires funding from the State must be justified on very cogent grounds. I am encouraged by previous debates in this House that there is a very real awareness among Senators of the importance of having a properly based scheme of civil legal aid. Indeed, I would argue that in many ways it could be cost saving because it would take away from strains on other sectors and on other professions, in particular strains on the medical and psychiatric resources of the State, if people have access to and can avail of legal advice and services.
The scheme of civil legal aid we have at present, as Senators are aware, operates through Government appointed law centres where solicitors give legal advice and will take cases on behalf of clients. Clearly, it only operates effectively to the extent that there are centres and the commitment of resources to centres is crucial to the expansion of the existing scheme. There has been some improvement in that area. For example, in May 1985 the Government authorised the establishment of law centres in Tallaght, Athlone and Tralee and also an additional centre in Cork. These were to be funded from the money allocated out of the Funds of Suitors Act, 1984. Senators may recall that there was a provision in that Act for part of the money to be used for these centres. Even allowing for this development there has been a gradual expansion of a network of centres and clinics. These are completely inadequate to deal with the demand for legal services. The report of the Legal Aid Board points out that from time to time throughout 1984 and 1985 it was found necessary to discontinue taking on clients. I have had the problem of people saying they cannot take on any more for six weeks, for two months, of law centres turning away people, unable to deal with a client. In these law centres provision is usually made for what are regarded as totally emergency, usually family law, cases where a protection or barring order is required. Nonetheless, that has been one of the real problems. One of the issues which was raised in this House not so very long ago by Senator McAuliffe and I was the question of the means test which had not been changed from the time the scheme was introduced until it was revised recently by the Minister. I think he did so on 29 May 1986 where he increased the upper limit for eligibility to £5,500. He has also made provision for a special reduced contribution for legal aid payable where the claimant's disposable income is less than £3,500. There have been also some increases in some of the allowances which are taken into account in calculating disposable income. It may be a little soon to have a clear knowledge of what effect that raising of the ceiling will have had. I would be interested if the Minister has any actual figures on the accessibility to law centres and the numbers attending them. The problem was brought out in the report we are discussing. The 1984 figures for both the total number of applications considered and the number of persons who received services under the scheme was down on the 1983 figures. There was a decrease in numbers of people applying and numbers availing of legal services under the scheme. We will have to wait to see if that trend is in fact reversed by the raising of the ceiling. Certainly — and this is something we did discuss so I am not going to deal with it in any great detail — we had got to the absolutely absurd position where somebody totally dependent on social welfare was ineligible, in certain instances depending on the size of their family, for legal aid because they were outside the terms of the means test at that time.
The statistical profile revealed in the latest report of the Legal Aid Board is much the same as in earlier years in that it shows that a preponderance of the cases are family cases. There is the difference that since the operation of the Courts Act, 1981 these cases are now taken in the Circuit Court or the District Court. Far fewer cases are, therefore, being taken in the High Court. I will refer later to the recommendations of the Joint Committee on Marriage Breakdown but there is a concern about the operation of legal services in family cases and, in particular, a concern about the court structure for the hearing of family cases. Given that matrimonial cases account for approximately 75 per cent of the total case load before these law centres, it is extremely important that we do have proper family tribunals and a broad based system of access to legal aid and advice.
What are the main problems, structurally, with the scheme for civil legal aid and advice which was introduced in December 1979 and which still, as I have emphasised, does not have a statutory basis? The main problem is probably that the scheme was a response to the finding that Ireland was in breach of its obligations under the European Convention because Mrs. Airey did not have the resources herself and could not get access to a remedy for her marriage breakdown problem. The emphasis was on providing resources so that people would have access to legal services. That is only one part, albeit an important part, of the overall problem and challenge of ensuring access to legal services for those who would not be able to afford to have that access.
The point I am trying to make is very well dealt with and analysed in quite a detailed article in the most recent issue of the Dublin University Law Journal by Gerry Whyte who lectures in law in Trinity. He makes a very compelling point that too much emphasis has been placed on providing law centres staffed by lawyers to provide in a narrow sense legal services to those who happen to get to those law centres. He points out that much of the cost now in servicing the existing centres is travel costs — I am sure Senator Durcan will be aware of this — in more rural areas where the law centre has to travel their solicitor quite a long distance to be available on certain hours for a limited period so that people can come along to the outpost, if you like, of the law centre in those areas. That is very different from an approach which sees the importance of law itself to people, particularly those who are disadvantaged in our society. I should like to quote from part of this article where Gerry Whyte calls for an alternative approach to civil legal aid as well as a statutory basis for that approach. I quote from page 127 of the Dublin University Law Journal:
It is submitted that one of the ways in which the problem of poverty can be tackled is through the use of the law on behalf of the underprivileged. In this context, the law can operate at a number of different levels. At a very basic level, individuals need access to the law in order to vindicate existing income-generating rights, e.g. right to redundancy pay, right to monetary compensation for injuries suffered in road accidents, etc. Obviously an award of money following on legal intervention can alleviate poverty in individual cases, and the impact of the law at this level can be enhanced through the use of class actions and test cases on behalf of underprivileged litigants sharing a common problem.
But the law is also capable of tackling the problem of poverty at a more profound level by redressing the imbalance of power which exists between the haves and the have nots through the creation of substantial rights for the underprivileged. One of the most subtle, and yet most disturbing, aspects of poverty is the powerlessness of the victims, the manner in which their plight deprives them of any control over their destinies. Legal aid will allow such people to vindicate such rights as they already have under the law. Furthermore an effective legal aid scheme should be able to identify those areas where reform is needed to build up a corpus of rights inhering in the underprivileged.
On that philosophical basis he argues for the kind of community law centre which the Pringle committee had argued was an important part of an approach to providing genuine access to law and to legal services. There is a fundamental difference between the kind of Government law centres operating under this administrative scheme and genuine community law centres operating for and in conjunction with their own communities. We have one or two examples. We have the Coolock Community Law Centre which, for the hinterland of Coolock, for the women's and tenants' organisations and other groups involved, can be a most important educational process, a way of providing access to power through access to information and, where necessary, legal services either to further individual cases or to bring about broader reforms where a recurring problem is detected in the law centres.
Our existing law centres operate narrowly on a one to one solicitor-client basis. People can come from wherever to an individual law centre. There is no identification with the broader context in which they live, with their community, with delving a little more deeply into the incidents which have provoked the actual need for specific legal advice.
I join with Gerry Whyte in calling very strongly for that kind of approach when we get the long promised legislation for civil legal aid and advice. We need to build up not simply this narrow type of law centre but the genuine community resource of a law centre which also is closely related to other groups and other expertise in the community and works closely with other bodies providing either care or expertise in the medical and other areas. This is absolutely fundamental to the kind of approach which will demonstrably improve the situation on the ground. That is in the sharpest contrast with the present structure of the legal aid board. In a more limited way, I should like to refer to the limitations on the present scheme, matters which must be picked up, addressed and reformed in the hope, which I trust the Minister will indicate in his response to this debate, of placing the scheme on a statutory footing and broadening the access to and the kind of legal advice and legal aid which would be available.
There are certain exclusions from the operation of the scheme. One of these, which is causing increasing harshness and problems on the ground, is the exclusion of legal aid for those appearing before tribunals. This now increasingly excludes people from legal advice and expertise in an area which may be of extreme importance to the individual but which is excluded by the scope of the scheme. The fact that the scheme operates simply through law centres employing solicitors to operate the scheme excludes other solicitors from being accessible for this type of work. It creates a number of different kinds of problems.
Because so many people either cannot get to a law centre or are ineligible under the means test for advice from a law centre solicitor, they come to other solicitors. There is on the ground a certain resentment and the resentment generally does not work to the benefit of those people in need of advice. They are told that if they are not able to pay, the law centres are there, that the Government have provided those law centres, that they have not involved the other solicitors in any way in them. If they are not able to get advice there, they are told to complain to the Government that the scheme is inadequate. This is a great pity because the whole movement for greater access to legal advice grew out of the FLAC centres, the Free Legal Aid Centres. It was the law students who were involved, law lecturers to some extent and also legal practitioners at the time, who were aware of the need for greater access. I believe that the legal profession should be much more involved in the provision of broader legal services and to some extent they are not pinned to that responsibility by the fact that we have this very limited, very narrow approach of having law centres.
It is true that the scheme provides for legal aid certificates for counsel to be involved in the scheme. It is of much greater importance that access to the scheme would be broadened by involving legal practitioners and then, as well as a person being able to go with a legal aid certificate to a solicitor and get the services of the solicitor as recommended by the Pringle committee, there would be this network of community law centres which would perform a much more educational role and which would break down the barriers of lack of knowledge, of helplessness, of defensiveness and which would provide for a genuine change and a substantial difference in the perception by certain categories, certain groups, certain areas, of their own rights and their own needs in the matter.
One of the things that concerns any of us who have been involved closely with certain groups who are deprived of access to legal advice is that the problem is not so much that they are going around actively looking for legal advice but that they have not perceived the nature of their problem and that it is one that should be dealt with by having access to legal advice. If they have got to the stage of perceiving that they need legal advice, then they are often extremely defensive, extremely vulnerable, intimidated and unable to look for that advice and they may come up against many problems in availing of that kind of advice.
The Seanad must take very seriously the initial commitment in April 1980 by the then Minister for Justice, Deputy Gerry Collins, who had established the scheme. He said he would bring in legislation at the first opportunity. The first report of the legal aid board made it known publicly that they wanted legislation establishing a system of civil legal aid and the present report repeats the necessity for this legislation.
I will conclude by referring to the way in which the problem was summed up by Gerry Whyte in that article to which I have referred in the Dublin University Law Journal. He says:
The present Scheme of Civil Legal Aid and Advice was a reaction to the decision of the European Court of Human Rights, Airey. As such it is only concerned with one aspect of the problem of securing access to the law viz. the expense involved. Even at this level it has not proved very successful. But if we are to take the question of access to law seriously we must abandon the current Scheme and resort instead to a community based model which identifies itself closely with the needs and wishes of the underprivileged, rather than the power-brokers of our society.
We would need to go back more closely to the Pringle report model — broad access to legal services, a choice of solicitor for the person looking for those legal services and this network of community law centres which constitutes a resource to that community which provides genuine access to legal aid.
There was a unanimous report of the Joint Committee on Marriage Breakdown, of which the Leas-Chathaoirleach was also a member, on the issue of legal aid. The committee did not deal with it in any great detail because it was not a substantial issue which they were considering but paragraph 9.19 of the report under the heading of costs states:
No matter how much legal costs are reduced people will still exist who cannot afford to pay from their own resources for legal help. Access to justice must be available to all irrespective of their means. For this reason there must be a comprehensive system of civil legal aid in respect of family matters. The present system of Government Law Centres is quite inadequate to meet existing needs. The deficiencies in the legal aid scheme are particularly noticeable in country areas. A fundamental reassessment of the legal aid scheme and its means of operation is now urgently required. The experience of its operations since its establishment suggests that the present structure is grossly inadequate, in that it certainly does not assure equality of treatment for all. The committee is also of the view that there should be no stamp duty on court documents in family cases and that VAT should not be payable in respect of legal fees incurred in family law cases.
That represents the view of members of the committee across the political spectrum. They are aware that the scheme for civil legal aid has not provided a response to the problem of access to legal services and that it is necessary to evaluate and to come up with legislation introducing a comprehensive scheme called for in this motion.