Seanad Éireann - Volume 114 - 01 October, 1986
Civil Legal Aid: Motion.
Mrs. Robinson Mrs. Robinson
Mrs. Robinson: 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.
Mr. B. Ryan Mr. B. Ryan
Mr. B. Ryan: I formally second the motion at this stage.
Mr. Durcan Mr. Durcan
Mr. Durcan: It is right that the Seanad should have the opportunity of considering the report of the legal aid board for 1983 and 1984. In so far as the motion before us gives us the opportunity of doing that I welcome it. I also welcome the motion as it gives us the opportunity of considering the development of civil legal aid in this jurisdiction. It is unfortunate, however, that the framers of this motion used the word “deplore”. It is regrettable in the context of this motion. It is right that we should consider the development of civil legal aid but to deplore the severe limitations of the scheme is an unfortunate phrase. I will indicate in a moment why it is unfortunate.
There are two points to make in relation to this motion. The first is to consider briefly the nature and scope of the scheme and secondly to consider briefly the existing framework of the civil legal aid scheme as it operates in this jurisdiction. I agree with Senator Robinson that the scheme as it operates currently is restrictive. If one examines the statistics attached to the appendix of the report we are considering, one can see that the great majority of cases dealt with by the law centres fall within the matrimonial area. There are many people on the other hand who are in need of legal aid and legal advice and who do not get that advice due to constraints of finance in other areas. For instance, in social welfare appeals there is a whole corpus of law which has not been properly attacked by lawyers. The reason for that is the simple fact that people who have to deal with that area of law are very frequently not in a position to retain the services and advice of lawyers who are competent in that area. Therefore, the civil legal aid scheme should encompass  most tribunals with which citizens have to deal. I specify the whole question of all types of social welfare tribunals.
Another point in relation to tribunals which is mentioned indirectly in this report is the question of rent tribunals. The point is made that the statistics show a drop off in landlord and tenant cases since the arrival of the rent tribunal. That is understandable. Civil legal aid should be available to all persons who have to deal with the rent tribunal and within the financial confines of the tribunal that type of assistance should be available. People who have to deal with tribunals which exist by virtue of the corpus of labour law legislation existing in this country or indeed who have to deal with tribunals established by virtue of the health Acts should have civil legal aid available to them. Senator Robinson said we are talking about justice being available to all. People cannot avail of many of the statutory tribunals which the Houses have established for the very simple reason that the financial assurance which is necessary when facing a tribunal is not available.
The second point I want to mention is the whole framework within which civil legal aid operates in this country. It is interesting to examine the essential difference between civil legal aid and criminal legal aid. Civil legal aid operates within a very definite framework. A person will approach a law centre but a choice of lawyer is not necessarily available. On the other hand, so far as criminal legal aid is concerned the person has choice of lawyer but within civil legal aid there is elaborate machinery. We have the civil legal aid board, law centres and the bureaucracy existing within the entire system. On the other hand so far as criminal legal aid is concerned we do not have that type of bureaucracy. This debate should give us the opportunity to consider whether, in relation to civil legal aid, choice of lawyer would be available to the citizen who would be applying for civil legal aid in circumstances similar to the operation of criminal legal aid.
I did not read Gerry Whyte's article to which Senator Robinson referred but the  points made there are very interesting. So far as rural areas are concerned, it is unfortunate that people in my part of the country have to go to Galway or Castlebar to meet a lawyer whom they do not know. In rural areas people have a relationship with a particular lawyer, people know a particular lawyer and, for many reasons, may wish to have their problem dealt with by that lawyer because he may have an understanding of their area and of their circumstances. So far as civil legal aid is concerned that is not available to the citizen who would come financially within the scope of this scheme. It is available in relation to criminal legal aid and civil legal aid should be reviewed on the basis of making the scheme operate somewhat similarly to the current operation of criminal legal aid.
It is interesting if one compares this to the operation of the general medical card service for people needing medical attention where a choice of doctor is available. We do not establish medical centres whereby people who come within the scheme have to go to a prescribed doctor. The same situation should operate in so far as civil legal aid is concerned. The number of cases referred to the law centres by solicitors is quite substantial. These are cases which solicitors, for various reasons, do not currently deal with. If civil legal aid were available, solicitors in general practice would deal with these cases and perhaps they would be far better fitted to deal with these cases than solicitors whose practical experience is merely within the confines of the law centre where their area of work is very limited.
If we are to have a proper community based civil legal aid system then it must be based on the ideal of choice of lawyer. That is the essential point that I want to make in relation to this debate. There should be a substantial and radical departure from the existing system which is based on the law centres and clinics that operate in smaller centres out of the law centres, which is not a suitable framework within which to operate civil legal aid. Furthermore, I am not satisfied that  it is the most cost beneficial system because it establishes a substantial bureaucracy of its own. If that bureaucracy were cut out the cost saving would be quite substantial and the overall cost increase in the scheme would not be very great.
One must welcome the paragraph in the 1983-84 report of the Legal Aid Board headed “Progress since Last Report”. One has to welcome the fact that the Government have made available moneys for the establishment of further law centres in Tallaght, Tralee, Athlone and a second centre in Cork city, and also that there is a plan to establish further law centres in Portlaoise, Letterkenny, Dundalk and Castlebar. That should be welcomed. I want to repeat again that I regret that the word “deplored” is used in the motion. It is good that we debate the idea of the development of legal aid in this country but it is unhelpful that that word is included.
I would like to conclude by simply saying that the whole concept of legal aid is one that is based on justice. We must have a framework of law and justice in this country which is available to everybody. A situation exists at the moment whereby our legal system is not available to everybody, the reason being that people do not have the financial resources to face it in many circumstances. I certainly feel that the scope of the civil legal aid system should be expanded but within the framework I have mentioned. That framework is based on choice of solicitor and not on the existing law centres.
Mr. E. Ryan Mr. E. Ryan
Mr. E. Ryan: I am in general agreement with the terms of this motion and with the case which has been made by Senator Robinson and which has been generally endorsed by Senator Durcan. The problems of this scheme which have disclosed themselves in the past few years are fairly obvious and the remedies that are necessary are also rather obvious. The problem of course is how to  implement the remedies that are necessary and, to a very considerable extent, I suppose this is a matter of funds.
The question of civil legal aid is a concept with which almost everybody would agree. There is no point having a legal system, no matter how fair and effective, if the citizen does not have the resources and the professional assistance to avail of it. Of course that view was expressed for many years before the scheme was introduced and eventually the Legal Aid Board were set up. They were set up as a pilot scheme in a very limited way, with very limited funds and the intention was that they should become a statutory body. Everybody regrets, and the chairman of the board speaking on behalf of the board regrets, that they have not become a statutory body. That is one of the first things that should be dealt with by the Minister. The only substantial improvement, the only move forward of any consequence over the years, was as a result of a grant from the Funds of Suitors following which new centres were authorised in a number of areas. Apparently a number of other centres may be set up as well. I know that some of the speakers do not feel this is the right approach, but I suppose additional centres would be better than the present situation if the legislation which is envisaged does not provide for a different method of approaching this problem.
The chairman in his report said that in spite of the improvements that have taken place the scheme, after five years, is far from providing the comprehensive service envisaged at the introduction of the scheme. I think everybody would have to agree that this is the case and that this is a regrettable fact. The inadequacy of the scheme is of course largely though not entirely due to lack of funds — lack of funds is certainly at the root of most of the problems.
There are problems in relation to the means test but again that is probably due to some extent to the lack of funds. The means test is quite extraordinary when it is disclosed in the report that even some people who are  entirely dependent on social welfare for their income are still not within the means test. It is almost inconceivable that a situation like that should arise. The position, far from improving, has become worse because 15 per cent of those who applied in 1982 were ineligible whereas 20 per cent of those who applied in 1984 were ineligible. This was mainly due to the means test.
The other difficulty which has arisen is a difficulty in relation to staff, the embargo, the method of recruitment of the staff and the fact that there is a very rigid approach to the situation which arises from time to time when even the limited number of staff which is provided for is temporarily unavailable. This has given rise to many of the irritations and difficulties which have arisen over the years. This, as has been pointed out by previous speakers, has led not merely to difficulties in dealing with cases but, on a number of occasions, to a complete suspension of dealing with new cases, a situation where people are told quite bluntly that the resources are not there to deal with their cases. Any scheme which sets out to deal with the problem is welcome. The problem in this case being the provision of legal aid and where the scheme has reached the stage where people who need that help are told, “we are no longer in a position to even talk to you about your problem”. This is a very serious situation and quite clearly the scheme is on the point of breaking down if people are told that they simply cannot even be considered for advice and help. This problem must be dealt with. It is due to inadequacy of staff which in turn is due of course to inadequacy of funds.
In regard to the number of applicants who are dealt with and who eventually appear in court, the statistics are quite interesting, because over the three years 1982, 1983 and 1984 approximately only 18 per cent of those who applied to the board and were dealt with appeared in court. The remaining cases were disposed of by other methods. The report does not deal with how this was done and it would  be unfair and unhelpful to ask an overloaded staff to provide very complex statistics. It would be interesting to know very roughly how cases were disposed of or, to put it another way, how many cases there were where simply no progress was made and no solution was found.
Another statistic which is given is the fact that 75 per cent of the cases which were dealt with, dealt with matrimonial and family cases. It was pointed out, and this is a very important point, one which should be looked into, that many of these cases are ones which should not have had to be dealt with by the board but which should have been referred to marriage counsellors who could have dealt with such cases much better and allowed the solicitor dealing with them to move on to other cases with which he could deal more successfully and more effectively. This is something which I believe is being looked into and I hope it will be looked into in such a way as to remove a problem there which really should not exist.
In looking back on this question of legal aid we must give credit for what has been done because a substantial improvement has taken place. We must give credit to all those who over the years crusaded and advocated action in this matter because it took a long time to even get to the position we are in today. We must give credit to those who advocated this, to those who immediately before the scheme was introduced gave their help freely and voluntarily to those who needed advice. I should like to point out that over the years, going back for a long, long time, it has been a tradition in the legal profession to sponsor those who appear to have a deserving case, a case which is a stateable case and one which deserved to be brought to court. In most cases they were brought to court even though there were no fees available to pay for them.
To look back for a moment, quite clearly what has been done is not anything like enough. Additional resources must be provided whether to improve the scheme as at present operated, or provide a choice of legal advisers. Obviously, the  latter would be the better one but whether it is feasible from a financial point of view I do not know. When we reach the stage where people are being turned away and told they simply cannot be dealt with, something radical has to be done. That is the greatest shortcoming in the present scheme and is something which must be dealt with. Additional funds are needed and I am very conscious of the financial constraints the Government have to operate under but, nevertheless, in this case the amounts involved are not huge. They are relatively small and the additional amount needed to make very important improvements in the scheme would not be great. In those circumstances I should like to ask the Minister to endeavour to provide extra funds to make the scheme into one which would be far more successful and effective than it is at present.
Mr. Fitzsimons Mr. Fitzsimons
Mr. Fitzsimons: I do not have much to say on this matter because I am not a lawyer. I have no expertise in this area but I agree with Senator Robinson and other Members when they say it is a very important subject. It is an area where lawyers best qualified to speak are those who are involved in the area of social justice. I was interested to hear Senator Durcan say he disagrees with the verb “deplores” in the motion because, apparently, he considered it too severe. Senator Robinson said it was the strongest verb she could use. It seems that, perhaps, a little compromise between the two of them would fit the bill.
Minister for Justice (Mr. Dukes) Alan Dukes
Minister for Justice (Mr. Dukes): Applause.
Mr. Fitzsimons Mr. Fitzsimons
Mr. Fitzsimons: In any event we all agree with the motion. I should like to pay a tribute to the lawyers. I agree with Senator Robinson that the legal profession should be much more involved but it seems from my experience over the years that lawyers have payed their fair share where clients were not in a position to pay full charges. Indeed, at present anybody in a professional capacity  encumbered with fairly high overheads will not find it easy to reduce fees.
In this regard we are talking about justice or, as Senator Robinson said, denying justice in some cases. My concern as a lay person is that in certain circumstances there may be a miscarriage of justice. From reports it appears that that is the position in many cases. In the area of social welfare where many people might have legitimate complaints there seems to be a problem about getting legal aid. That is unfortunate, and it is an area the Minister should look at. Can something be done to bring that area within the ambit of free legal aid? I realise that great work has been done by the Ombudsman and when we consider his report for 1985 tomorrow we will be in a position to go into that matter in greater detail. However, while the Ombudsman in all the cases I was involved in gave total satisfaction and went into all the cases in great depth before arriving at a satisfactory conclusion I consider the procedure to be too long. That is my main complaint. In the area of social welfare it is a pity that many people who seem to have legitimate complaints find difficulty in getting legal aid.
Some of the publications referred to in the motion were very helpful. The most comprehensive one is the report of the Committee on Civil Legal Aid and Advice, published in 1974. However, bearing in mind the changes that take place from year to year, indeed, from month to month and week to week, I wonder if that report should be updated. For example, I note that one recommendation is that members of the legal profession who are willing to provide legal aid or advice services should have their names placed on legal aid or advice panels. It seems, not being familiar with the legal procedures, that having the names of lawyers in different towns and centres throughout the country on a panel and available for consultation would be more satisfactory than the present position. I note in the report for 1983 and 1984 of the Legal Aid Board — this has been referred to — that there are three law centres in Dublin, two in Cork, one  in Limerick, one in Waterford, one in Galway and one in Sligo. There are part-time centres in Carlow, Clare, Cork, Donegal, Dublin, Kerry, Kilkenny, Leitrim, Louth, Mayo, Tipperary, Westmeath and Wexford. My main complaint in that regard — it is a legitimate one and one the Minister will understand — is that, for example, in the town of Navan, a growing town with a big population, there is no centre. As Senator Durcan said, in situations like that it is necessary for people involved to get a bus or hire transport to those far-away centres. This is unfortunate and unsatisfactory.
I should like to comment briefly on some of the points raised in the report of the Legal Aid Board for 1983 and 1984. We are told that the board has been the subject of severe criticism from a wide variety of individuals and bodies on the basis of the inadequacy of the service provided. The report states that this criticism is unfair in that it fails to recognise that the central problem is inadequate funding, a matter outside the board's own control. This is unfortunate. It should be seen that if the board are to improve and to perform their function adequately more funds must be provided. It is acknowledged that the constraints on public finances are a serious problem for the Government and stated that they are strongly of the view that a high priority should be given to the provision of civil legal aid services, the need for which is felt by the poorest sections of the community. This highlights the failure of the free legal aid system in that it is the poorer sections that suffer, and presumably this is the section that the board were set up to help. There are many areas, as this report points out, where they are unable to help.
The problems of the Legal Aid Board are not confined to issues of resources. The report refers to restricted means tests 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. The Minister has made some concessions with regard to the means test and certain provisions  have been made with regard to the embargo on staff but these are still inadequate and something further should be done in this regard.
Senator Robinson referred to the necessity for putting the scheme on a proper statutory basis. Apparently this was the original intention. After six years it is difficult to find any justification for not proceeding to have it on a statutory basis. Perhaps the Minister in his reply would tell us if it is intended to do this and if it will be in the near future because the Government have promised to give priority to legislation. Although there was some criticism of the Order Paper today and of the priority given to certain items on the Order Paper nobody could object if this Bill was brought forward. I look forward to debating it further in the near future.
Eleven thousand people were provided with legal aid in the two year period 1983-1984 covered by the report. This is a considerable number. The tables in the back of the book show us, in addition, the number of people who were refused. Many of those concerned would have been unable in practice to secure access to justice but for this scheme. When we talk about justice, it is unfortunate that so many cases end up in litigation. Many of them could be dealt with without going to court. The advice centres are intended primarily to deal with that situation and they do so to a large extent. Justice is not easy to get. I remember one occasion about ten years ago when there was a dispute between neighbours. One very elderly man came to me and told me he had left his old thatched house and a small plot of land half a lifetime previously, and calling back at some time he felt his neighbour had moved the fence a foot in on his plot. As everybody knows, it is very difficult from a 25 inch map to decide if a fence has been moved but my advice to him was to forget about the problem. He said to me that if his neighbour did not move the fence a foot back he would take his life. That was his idea of justice. He wanted total justice, the total pound of flesh. It is unfortunate that everyone is inclined to look for that total pound of  flesh. In society we want a certain amount of give and take. The whole emphasis of advice should be concentrated on trying to avoid that total confrontation.
I pay tribute to the Legal Aid Board for the work they have done. The report refers on the means test to the disposable income ceiling of £3,500. That is an inadequate figure and I wonder if it varies from year to year. I had wished to refer to different points very briefly but obviously my time has now expired.
I am in total agreement with the motion and I look forward to the Minister's reply. I hope it will be a very positive one.
Mr. B. Ryan Mr. B. Ryan
Mr. B. Ryan: The concept of access to civil legal aid is one of these things that is almost tucked away in the back of the public mind. We do not have the same enthusiasm for access relatively inexpensively to the protection of the law that we have for access, for instance, to education, to health services, housing or anything like that. Yet the whole basis of parliamentary democracy is that we are at the base, a society of law and that we regulate our relationships between each other and the relationship between the State and the individual on the basis of law and that the adjudication of how that law is to be operated between individuals and between individuals and the State is a matter for the courts. All that sort of thing is taken as part of at least the rhetoric, if not the experience, of our society.
If the reality of the rhetoric of our society of law were to be actually taken seriously, then any citizen would be able to approach the legal system and use the law to vindicate his or her rights in the way that citizens approach our education service, with the presumption that their children's necessary education is a right to which they have access or in the way their children's access or their own access to health services is a right or indeed even within the inadequacies of our existing structures in the way people feel that  there is at least some presumption of a right to access to housing. We would have a society in which people took the use of the law to protect themselves for granted in the way that we take the health services for granted or in the way in which we take education for granted.
The rhetoric about our equality before the law and about the significance and centrality of the law is in protecting us not in controlling us. That is the great rhetorical theme that we get time and again: that the law is not something that controls or restricts our freedom; it ultimately vindicates and underpins our freedom. If it is such a fundamental part of the structue and foundation of our society one would assume that citizens would have ready easy access to it and that citizens could take that sort of ready easy access for granted. It is not something that you would go looking for in a moment of high domestic crisis or high personal crisis; it is something that becomes part of your normal experience.
I can only contrast that with my own experience as a relatively articulate and educated individual the first time I visited the Four Courts to attend a civil case in which somebody else was involved. It is a profound shock to the system of the layman to walk into the magnificent open space and see bewigged individuals who carry an image of superiority, of difference and of an almost unbridgeable gap between you, the ignorant layman, and these high priests of the law.
Mrs. Robinson Mrs. Robinson
Mrs. Robinson: High priestesses.
Mr. B. Ryan Mr. B. Ryan
Mr. B. Ryan: The Senator does not want to drag me into the issue of priests and priestesses. We will leave that to the Minister for Social Welfare. I am sure the Minister will pass on the Senator's message to the Minister for Social Welfare. There is a sense of difference and of being outside, something that has almost surrounded itself with a mystical aura. You have the feeling of being one of the plebs in the company of the elite. That is the way the law is experienced by ordinary people which is by way of contrast with the theory of what the law and the  courts should mean to the citizen. The sense of alienation I described would intimidate most ordinary people from contemplating the use of the courts and the law. I know from recent personal experience, not in my own case, that people in domestic difficulties find the prospect of having to go to court, even in in camera situations, overpowering and difficult. It is a totally new experience, totally different from the idea of going up to the school to talk about education, or going into a hospital or a doctor's surgery to talk about health. There is the sense that the procedures of the law are different, difficult and painful and you are liable to suffer a lot in the simple process of trying to get what is your right under the law.
When you compound that initial alienation with the huge expense perceived by people to be involved in vindicating your rights, you create a society which is not really equal before the law. Those who can afford to pay can have everything that is needed. You only have to look at the proportion of cases before our superior courts about property law and finance law and contrast them with the absolute paucity of cases in the areas of social welfare law, housing law and areas like that. If it had not been for the great work of my colleague on the Independent benches, Senator Robinson, a considerable part of what has been done in the areas of housing and welfare law would never have been done at all. I hope she has been paid in the cases where she defended the State but in the other cases I am sure she will never see much in the line of cash. I would like to congratulate her and put on record the indebtedness of many people in our society to the work she has done.
Once we have a combination of cost and alienation we no longer have a society in which people are equal before the law. The theory may well exist but the practice confirms to people that it is no more than a theory and it does not work like that at all. The Legal Aid Board is a limited access to the law which was grudgingly handed out and was forced upon us by the European Court of  Human Rights. We resisted it all the way until it was finally imposed upon us. What we have is a means tested scheme. Bishop Birch, the late and lamented Bishop of Ossory made the point about means tested services that, almost by definition, a service for the poor becomes a poor service. That, at bedrock, is the problem with any means tested service. Added to that are the ludicrous means tests involved in the operation of the Legal Aid Board and the even more ludicrous fact that every time we set up a new means tested service we seem to set up a new means test so that the same people have one means test for a free school transport, another means test for housing, another means test for their medical card and a different means test for something else. We have a society awash with different means tests for different services. Nobody has grasped the idea that it might be feasible to have one means test for all the services people are deemed to need. It would do an awful lot to eliminate the humilitation of people who are conventionally called poor but whom I would prefer to describe as oppressed in our society.
Apart from the fact that people cannot afford to use legal procedures to vindicate their rights the law centres that are set up are means tested and therefore are inadequate. Added to that is the fact that their physical locations separate them from many of the people who need them most. The one law centre in Cork is located on the north side of the city where most of the people who are least well off live. It is marginally on the north side of the river. In other words, it is on the northern bank of the northern channel of the river Lee. It is a long walk from there to where most people who would need legal aid and legal advice are situated. It is not a criticism that one would address exclusively to the law cnetre. It is also true that out of the presumably close to 100 legal practices in Cork only one that I know of is located on the north side of the city. The rest of them are located in the comfortable ghetto on the South Mall where most of the legal practices associate comfortably with each other.
 The law is separate from people. The means test and the law service we have produced are still separate from people. We have to de-mystify the law in the way we have begun to de-mystify health and education. It is something to which people are entitled. They should not be intimidated or frightened away by expense. When we look at the restrictiveness of access because of cost, the restrictiveness of the means test, the separation that the form of the law centres creates together with the fact that there is no sense of a community involvement by the law centres and the extraordinary restrictions that are imposed on the law centres, an area of life which is particularly important to poor people in our society is completely excluded. That is the area of tribunals. If you do not see a conspiracy you see a fairly clear intent to avoid any concerted effort to vindicate what limited rights the people who depend on social welfare have under the law and the determination to preserve that area of law from the detailed scrutiny of the courts. This will only come about when somebody forces this legislation to be considered by the courts. There seems to be a certain amount of evidence that, when people succeed in bringing these issues to the courts, they take a fairly dim view of the traditional accepted official interpretation of what this legislation means.
I want to refer to the area of social welfare appeals which is probably one of the running sores of injustice in our society, particularly now that we have to live, apparently for the indefinite future, with the best part of a quarter of a million people unemployed. The tragedy is that the law centres are effectively precluded from what might be understood to be test cases and this excludes a large amount of work in the area of social welfare law. I do not say this was done deliberately but the actual consequence of that sort of exclusion is to operate as a controlled mechanism. It is extraordinary the looseness of language that surfaces in what might be described as legislation which is directed towards the benefit of the poor.
 The example that immediately comes to mind is a Bill currently before the other House called the Housing (Miscellaneous Provisions) Bill, 1985, in which many things that would intimately affect the housing rights of poor people are dependent on the opinions of the housing authority and things like that. If that sort of vaguely written legislation operated in the area of taxation, in the area of companies and in the area of property rights, the whole courts system would be clogged up by a mass of legal actions to determine what was meant by the opinions of various bodies and what was meant when somebody was said to regard somebody as eligible or otherwise. If the Revenue Commissioners had that sort of flexible right to form opinions on which decisions could be taken about people's futures, the courts would be swamped with legislation. But we can do it in the case of poor people because we can presume that, in the vast majority of cases under our present system of legal aid, they will not be in a position to challenge these things. therefore, the process of restricting access to civil legal aid is not just an incidental consequence of the impoverishment of the public finances. It is, whether deliberate or not, a necessary condition for control and regulation of those who depend on the State for their income and support.
In conclusion, I would like to say that even if we did have full access, properly funded through legal aid, we would still have to confront the fact that as our society is organised the Judiciary does represent very much one class perception and its conclusions and judgments will still represent one particular view of our society for a long time to come, even if people have equal access.
Mr. M. Higgins Mr. M. Higgins
Mr. M. Higgins: I would like to join with other Senators in complimenting Senator McGuinness and Senator Robinson who tabled this resolution. On behalf of the Labour Party, I strongly support the spirit of this resolution and, indeed, the letter of it as well. Towards the end of the preceding speaker's speech I noted a certain amount of doubt as to whether  the law can ever be an instrument of the poor or an instrument of those who suffer in society. I certainly subscribe to that view. I do so as somebody who every year has people who will go into the legal profession among my students. I will make my point very clearly. There are those who would suggest that the law in any society is an instrument, a social construct if you like, that reflects the structure of power and influence in society. There is no doubt at all in my mind that the normative content of law, the procedures of law, the ritual of law and the practice of law in themselves are concrete social expressions of the structure of a society's basis.
Those who have examined the procedures of law in courts know that there is an enourmous distance between those who are placed in positions of authority and decision making and those who may be at the receiving end of the scrutiny of the law. Many people get irritated by this view. It is not a view that I absolutely accept. I think the law also reflects an evolution towards an egalitarian tendency in the society. I might say that I have detected over the years in the traditional conception of law the view that law itself is almost removed from and above any kind of social scrutiny rather like the absolutist versions of religion.
Therefore, it is interesting to know that in the history of civil legal aid, and legal aid in general, it was younger more socially concerned members of the legal profession who pioneered the establishment of the concept of general access to the protection of the law as an equalising force in society. That is a matter of fact that cannot be denied. Therefore, when this question of access is evaluated, we will have to realise that what is necessary is not an adjustment, even an adjustment forced upon us, but a turning around of the nature of the law so that the citizen's relationship to the State is a qualitatively new one.
The motion correctly makes reference to three sources. The report of the Legal Aid Board draws our attention to the sheer impermanence of both the form and the provision for such legal aid as  exists, its marked inadequacy and the whole arbitrariness almost of selection of both location and terms of access themselves. Most important, it makes reference to the Airey judgment of the European Court of Human Rights. I think it is terribly important for us to be seen not to offer something that is a very cosmetic response to the establishment of what was a right. That is the political significance of the motion. It is a matter of whether you are, in fact, happy with an adjustment that meets the minima of what you are required to do, or whether you are interested in taking on the debate that exists about the nature of law in Irish society.
I am far from being optimistic that the existing structure of law and its procedures in any of its forms can be turned around or accommodated towards a more egalitarian conception of the law itself. I have many reasons for saying that. Law, like anything else, in terms of its expression is a carrier of the deep authoritarianism of the culture. When people ask me about the connection between law and society they are often less enthusiastic about making the form practice of law an object of study in itself but would like to suggest that the inner professional practices of practitioners constitute an adequate study. Such a study is as relevant as whether a study of the instruments of plumbing is an adequate substitute for the subject of hydrolysis. The nub of the matter is that poor people and people without adequate means have been advised in the report of a board that there is such an inundation of applications for the limited assistance available that their applications cannot be considered. We equally know that there are far more who know that is the fact who will be deterred from applying. We know, an even more appalling fact, that family cases are being deferred and left as if in a society like ours that has told people who are in the unfortunate position of being in marriages that are unhappy, that they must wait for some future period of enlightenment before we bring in the question of divorce, that even  in terms of access to the courts themselves they will have to be delayed and their cases cannot be heard.
Then there is this appalling notion, no more than existed at the beginning of the debate on the welfare state in Britain, that you have to establish a level of poverty before you become entitled to access to civil aid. It is an appalling indictent of the slow evolution of social concern about access to the law itself. I am very worried about points that have been made in previous speeches concerning the implications for family cases of the implementation of the Courts Act, 1981, and the changed jurisdiction of lower courts with the apparent result that even fewer family cases are being heard in the new circumstances. How can it be regarded as adequate so long after a promise was made by the Minister of the day that a statutory basis for civil legal aid has yet to be established. Civil legal aid and all forms of legal aid in general are a marvellous source of information, should a reforming administration want it, of the kind of troubles which afflict certain parts of our society and certain groups within our society. However we are in the position where the sheer transient nature of the schemes that have been established and their inadequacy mean that professionals within them have to rely on their heroism rather than on an adequate basis of support. They are not rewarded properly, have no permanence of appointment, are far from having fellow professionals in the social and psychological sciences, the therapeutic sciences and all of the other intervention agencies that could very valuably prop up their work.
We are, unfortunately, as we listen to the debate on this resolution, thinking about how poorly and inadequately we have moved after we have been found to be in breach of adequate provision. The board who felt responsible for the supply of that provision have asked us to take note of how an even inadequate and limited service cannot be provided. We must be grateful for the reminder which the  movers of the resolution have provided for us of our responsibilities, certainly to take note of the civil legal aid and advice scheme and to take a note of the Pringle reports and the Airey judgment by the European Court of Human Rights. We are also asked by the thrust of the resolution to consider the implications of there being limited access to the legal process in our country. There is nobody more pretentious than the Irish legislator on his or her high horse talking about the force of law and order but if all of this provision is not there and if all of these barriers and gaps are there, the question can reasonably be asked — whose law and whose order? It is like a person being upset about something and being asked whether they could go to law, but having it pointed out that that would cost a fortune. That is sufficient to deter someone from that line of action. Even when people prevail in circumstances that they know can hurt them and when they cannot easily and reasonably expect access to the civil law, there arises a question about the realm of the civil law itself, the kind of material with which it deals, the decisions at which it will arrive and the almost casual manner, after sometime, that those who can afford the civil law can move on to this partial version and can almost transact it the same as if one was exchanging money.
Seanad Éireann 114 Civil Legal Aid: Motion.