Select Committee on Legislation and Security díospóireacht -
Wednesday, 12 Jul 1995

SECTION 7.

Ms Keogh

I move amendment No. 12:

In page 8, subsection (1), line 28, after "necessary", to insert", and shall lay each such directive before the Houses of the Oireachtas".

This refers to the power of the Minister to issue directives to the board by order as he or she considers necessary on matters of policy on legal aid and advice from time to time as the occasion requires. My amendment provides that such directives would be laid before each House of the Oireachtas. To coin an overused phrase, this is to ensure openness, transparency and the other magnificent words used to describe how our processes should operate.

I will not be as ambitious as Deputy Woods and oppose this section because in the rest of the Bill the Minister has retained a large degree of control over the board. However, it might allay the fears expressed to me by a number of bodies if these policy directives could be discussed. Committees such as this provide fora for such discussion and since we now have 17 committees there is far better opportunity for that. A debate on these matters might be much more meaningful than some of those which took place in committees. It would be appropriate if this committee had the opportunity to discuss policy affecting the Civil Legal Aid Board; it would make public the directives of the Minister and discussion might lead to agreement on where the policy was leading us. It would then be seen to be open and transparent in all senses.

It is often felt that a Minister may take to himself or herself more powers and direct a board such as this into areas which might not necessarily be appropriate — those remarks are not directed towards the present Minister, they refer to any Minister. In policy directives, Ministers should be put in a position where there can be a challenge or a discussion as to how policy is directed. From that point of view this is a reasonable amendment as it will ensure a thorough discussion.

In refusing my last amendment the Minister said there was interaction between himself and those involved in civil legal aid in the formulation of policy, etc. This amendment gives us an ideal opportunity to see how the Minister's thought processes were developing and to decide whether the policy reflected the feedback we are receiving. It would allay the concerns about the powers vested in the Minister by the Bill and the control he can thereby exercise. That control stems from many of the aspects of the Bill with which we have difficulty.

Mr. Taylor

This amendment would provide that directives issued under section 7 would have to be laid before the Houses of the Oireachtas. It is unnecessary because the section as it stands requires the Minister to issue such directives by order and such orders must, by virtue of section 38 of the Bill, be laid before both Houses and are published in Iris Oifigiúil. I, therefore, oppose the amendment because it is unnecessary.

Dr. Woods

The intention of Deputy Keogh's amendment is clear and desirable. The Minister said section 38 provides for the laying of any of the orders or regulations before the Oireachtas as soon as may be after they are made; and a resolution annulling the order or regulation may be passed by either House within the next 21 days, so there is some control over the order. That would seem to cover the position.

However, this amendment is important because it is a call for openness about any orders or directives made or given on policy as to legal aid and advice. On that basis I oppose this section. Section 37 provides for a range of regulations and has a catch-all provision in 37 (2) (j) to deal with such other matters arising by virtue of the Bill, as the Minister considers appropriate. This relates back to policy directives under the Bill. The Minister said the provisions in section 38 mean Deputy Keogh's amendment is unnecessary; the provisions in section 37 means what the Minister provides in this section is unnecessary. The Minister is thereby hoist with his own petard to some extent, because he can make these regulations under section 37 under the general powers in the Bill. That is as it should be because policy directives should relate to and derive from this Bill. Therefore, one wonders why the Minister is making this overall provision and what sort of policy directives he is considering. Section 37 provides the Minister with the means to implement any of the policy directives that come with the Act. What is the need for the provision? What sort of policy directives is the Minister thinking about if they come outside section 37, or are we giving extra powers to the Minister by including section 7? I would be happy to leave in subsection (3) as amended by the Minister in section 7, while excluding subsections (1) and (2). Subsection (3) states: "Nothing in this section shall be construed as enabling the Minister to exercise any power or control in relation to any particular case with which the board is or may be concerned." I welcome this desirable provision as well as the fact that the Minister is extending it to cover the whole Act. Those are my queries. Your indulgence, Chairman, has allowed me to cover the section at the same time, which avoids repetition.

Ms Keogh

I do not want to get bogged down in semantics and I know we are anxious to get through the Bill today. I do not wish to hold it up but the specific reference is to "general directives as to policy" and the order or regulation of the Minister is covered. Section 38 (1) states: "Every order or regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling the order or regulation is passed by either such House within the next subsequent 21 days on which the House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder." I may be wrong in my reading of that section, but is it not possible for the Minister to lay the order or regulation down during a recess so that the order in relation to annulment may not arise? Maybe I am misunderstanding it. Does the order or regulation have to be laid down during a period when the House is sitting?

Mr. Taylor

Yes. It has to be before the Houses for 21 sittings days.

Dr. Woods

The Minister could possibly lay it another day, but 21 sitting days have to expire anyway.

Mr. Taylor

They must elapse.

Dr. Woods

It is a good safeguard.

Ms Keogh

I realise that.

Mr. Taylor

In other words, if it was laid now you would be well into October before the time would run out.

Ms Keogh

That is the point.

Amendment, by leave, withdrawn.

Mr. Taylor

I move amendment No. 13:

In page 7, subsection (3), line 36, to delete "section" and substitute "Act".

This amendment proposes to extend the effect of subsection (3) to the whole Act thereby ensuring that nothing in the entire Bill is to be construed as enabling the Minister to exercise any power or control in relation to any particular case with which the board is or may be concerned. In its original format it was confined to nothing in this section and I propose to amend that to say that nothing in the entire Act shall be so construed.

Amendment agreed to.

Question proposed: "That section 7, as amended, stand part of the Bill."

Mr. Taylor

Section 7 empowers the Minister to issue, by order, general policy directives in relation to legal aid and advice to the board, and the board must comply with such directives. However, such policy directives do not confer power on the Minister to exercise any power or control in relation to any particular case with which the board is or may be concerned. The issue of ministerial policy directives is at present provided for under paragrpah 226 of the existing scheme and over the years of the board's operation it has been necessary for successive Ministers with responsibility for the legal aid board to give policy directions to the board, all of which have in one form or another helped to clarify positions for the board where necessary. In many cases the directives were of direct benefit to legally-aided persons. It is extremely important for a Minister to have power to make policy directives. There are precedents in other legislation and there is no reason to depart from precedent in this case.

It may be suggested that for a Minister to have such a power will enable him or her to interfere with the independence of the board in its day to day dealings with individual cases. That is certainly not the intention and subsection (3) of section 7, as now amended, makes that perfectly clear.

Dr. Woods

Does the Minister not have power under section 37 to make any regulations that he considers fit within the powers that are conferred in the Bill when it becomes law?

Mr. Taylor

Policy directives are a separate category.

Dr. Woods

They could be construed as separate, yes.

Mr. Taylor

That is why they are dealt with by order as opposed to other items dealt with by regulation dealing more with the administration of the scheme. However, in both cases the overriding provision, following amendment No. 13, is that the Minister may not do anything under the Act that would interfere with individual cases dealt with by the board.

Question put and agreed to.