Seanad Éireann - Volume 114 - 08 October, 1986

Civil Legal Aid: Motion (Resumed).

Debate resumed on the following motion:

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.

—(Senator Robinson.)

Mr. M. Higgins: Speaking on this motion on the provision of an adequate [273] system of civil legal aid and advice last week I made the point that the nature of law itself reflected a set of power relations within any society. Indeed, the question might legitimately be asked as to whether the law might be amenable to egalitarianism in any sense. I said this reflects itself not only in the nature of law, but also in the character of the legal process. The legal process, if it is dealing with laws that are narrow and, for its practitioners, draws on those who are from a particular spectrum within the society, must inevitably be affected by such forms of participation. This generated a set of procedures which provided a source of mystification for the legal process. These three dimensions, if you like, constitute a distance between the access of the citizen and the law itself. That distance was by no means neutral because participating in however a lesser sense in formal citizenship rather than a citizenship of real equality, the citizen still looked to the law for the satisfaction of basic grievances. I said that if the structure of the law has the character I say, the absence of an adequate system of advice and assistance is to be deplored.

The second point I made — and I am saying this by way of summary conscious of the fact that I have little time and that other speakers will be emphasising many of these points — is that it would be much better for us as a Legislature to choose to have a system of civil legal aid and advice rather than to have one forced upon us. Since our membership of the European Community, we are continually, faced with this choice. It is to be our response that, in a minimal way, we supply what we are forced to supply for the vindication of their new rights by citizens of the European Community, or should we supply services on the basis that their very supply was good in itself and in accordance with the logical provision of equal citizenship that made sense to ourselves?

I drew attention to the points and commentaries on the reports which are referred to in the text of the motion. We are indebted to Senator McGuinness and Senator Robinson for putting down this [274] motion and drawing our attention to the facts contained in the reports of the Legal Aid Board which spoke about the enormous delay in hearing cases and the effect of the changes in jurisdiction from the District Court to the Circuit Court. In particular I mentioned the implications for family cases awaiting a hearing. In all of this there is the whole question that should a system exist, so many people, would have benefited simply from advice. The point was made equally that legislation was necessary to establish the secure statutory basis of an adequate system of aid and advice. I mentioned that the professionals involved who had pioneered legal aid in this country — and I recall it being introduced — were by and large more progressive people who were conscious of a new mood of egalitarianism in Ireland at that time. Perhaps it is still there. It certainly was more accentuated at the time of the introduction of the system in the late sixties or early seventies when the debate was going on. They were younger professionals. If they gave their professional services in a very generous and a very concerned way, they are now entitled to the security of knowing that what they do will be formalised.

The last point — and it is a point that had been made by speakers who spoke prior to myself and I simply added my voice to it — is that the very nature of an adequate civil legal aid and advice scheme is that it should encourage the carrying out of research, co-operation between the professionals who are involved in the inter-face of poverty and deprivation in our society. Indeed, the reality was that, with something that did not have a statutory basis and was insecure, not knowing whether it would exist from one year to another and inadequately provided even in a special sense, people had to put up notices saying they could take on the burden of no more cases.

Therefore, finally, the whole burden of what I had to say is this. I had voiced a scepticism as to the very character of law itself but suggested that the failure to provide a comprehensive system of civil [275] legal aid and advice was an additional disincentive to citizens however remote they had been removed from the legal process. I said that equally therefore we would all benefit by the provision of this. It should be provided in a positive sense in such a way and in such an atmosphere that it would encourage the generation of new knowledge about the kind of cases that are being dealt with in the system as it exists at present. I thank the Senators who have put this motion on the Order Paper and I voice my support for it.

Professor Hillery: Legal aid is concerned with the provision of legal services for people who otherwise cannot afford to pay so that they will have access to justice. The report of the Legal Aid Board for 1983 and 1984 gives us important insights into how the present scheme of civil legal aid and advice is working out in practice. The present scheme introduced on an administrative basis in 1979 has not yet been put on a statutory footing. I support the view that the scheme should be placed on a statutory basis.

The main problem as outlined in the board's report is that of funding. I acknowledge that there are constraints on the public finances and that there are many competing demands for scarce resources. We are talking here, however, about the provisions of legal aid for the poorest section of the community who need that aid in order to have access to justice. In the two year period 1983-84 some 11,000 people, we are told in the report, were provided with legal services. It is highly probable that thousands more have been denied those services due to a lack of resources. Indeed, we are told in the board's report that periodically during 1984 and 1985 it was necessary to discontinue taking on new clients. During these periods new emergency cases only were taken on and the emergency category itself could not at one stage be catered for by the Galway law centre. For obvious reasons, the Department of Justice keep a close eye on the cost of the civil legal aid scheme.

I now want to make two specific [276] suggestions for the reduction of costs under the scheme. From time to time solicitors from the law centres need to travel considerable distances for court appearances. Their presence in court may be required for a mere two minutes in order to secure an adjournment of a case. Consider then the cost of a solicitor from a law centre attending a court hearing for such a brief period. Such cases can and do arise. There is the cost of the travel involved, subsistence rates and, in particular, the solicitor concerned may be away from his office and therefore from his professional duties in the law centre for most of the day, thereby foregoing that amount of professional work which could be conducted if the solicitors were able to continue at their offices. I wish, therefore, to propose that in such instances cases be contracted out to local lawyers. I recognise the risk, as it were, of increased costs in that context. At present under the scheme there is no role for the private practitioner. I do not support the view that such contracting out would prove more costly than present arrangements. I feel that a local lawyer in the type of instance I have just described could provide a better, more important and a cheaper service for the client.

My second suggestion for cost saving relates to the means test. I welcome the fact that a few months ago the Minister increased the upper eligibility limit for legal aid. The administration of the means test is a time consuming and costly process. My suggestion for change is as follows: if a means test has already been applied for, say, social welfare assistance or medical card eligibility why then, I ask, should a further means test be carried out to ascertain eligibility for legal aid? If the requirements for a means test were dropped in such cases the legal aid service would prove more human for the client and less costly for the State.

With regard to matrimonial cases it is encouraging to note in the board's report that three out of four matrimonial cases in 1983 and 1984 were dealt with by the Legal Aid Board without court proceedings. The social and psychological effects on an individual going into court [277] cannot be underestimated. It is unpleasant enough for a person to litigate on an ordinary matter, for example, a claim for compensation, but to litigate over a family matter is perhaps one of the most emotionally painful experiences one could endure. Welcome as the high proportion of settlements is in matrimonial cases the Legal Aid Board report points out that the legal aid scheme is often used by clients of the scheme who should instead be using marriage counselling or conciliation services. The solicitors of the scheme normally refer suitable cases to a marriage counsellor where they consider that there is a prospect of reconciliation. The report makes the further important point that in cases where there is no prospect of reconciliation parties are anxious to find solutions to their difficulties and the solicitors find themselves engaging in mediation between parties for which they are not equipped by their training. This experience underlines the urgent need for a scheme of mediation. A very modest, though welcome beginning was recently made but I fear that funds provided for the recent pilot scheme for mediation will prove entirely inadequate to the task.

Despite the difficulties facing the legal aid scheme the results are impressive in the circumstances. The real losers are the thousands of people who need legal aid but are denied it. The Government through relatively modest additional funding could ensure that access to justice is provided to those thousands, often poor people, who urgently need it and deserve it.

Minister for Justice (Mr. Dukes): While I understand the concerns that have led the proposers of the motion to put it forward I would like to make it clear that I do not share their alarmist note nor do I accept that there is anything to deplore about the operation of the scheme. Last Wednesday evening Senator Robinson, in an obiter dictum, suggested that she could not find a stronger word. My belief is that it is far too strong a word for the motion that is [278] before us. I would suggest, on the contrary, to Senators McGuinness and Robinson that on a balanced and objective reading the report of the Legal Aid Board for 1983 and 1984 does not warrant such a negative reaction. Nor can I accept that the difficulties the board are experiencing in meeting the demands for their services are related in any meaningful way to the 1977 Pringle report on civil legal aid and advice or that the judgement of the European Court of Human Rights in the Airey case of 1979 is relevant to this matter.

Among the positive aspects of the board's report is the board's acknowledgment of the recent contribution from the Government to the extension of their services. That was the decision to allocate moneys to the board under the Funds of Suitors Act, 1984, to enable them to establish new law centres in Tralee, Athlone and Tallaght and an additional centre in Cork. The board saw this development as the most welcome news received by them in recent years. They have expressed their gratitude to the Minister for Justice for securing this badly needed expansion of service at a time when resources necessary for the development of social services generally are very scarce. I might add, in case there is any confusion on the matter, that I am glad to have been the inheritor of my predecessor's good sense in that particular matter and indeed to have participated in a different capacity in making that decision.

To bring the House up to date on the question of resources, I can report that the centres at Athlone and Tralee are already open. I had the pleasure of formally opening the centre in Athlone. The centre at Tallaght is expected to open early in the new year — the delay there, which I regret, is due to planning permission difficulties encountered by the board. The extra centre in Cork has been operating since November 1985.

This development marks the first expansion of the board's services to new locations since the scheme started to operate in 1980. It brings the total number of full time centres operated by [279] the board to 12. The board also operate part time clinic services at 13 other locations around the country, and the current expansion of full-time centres is expected to enable the board to extend their part time services also. I understand that the board hope to open some additional part time centres before the end of the year. Persons who wish to avail of the board's services may do so at any of the locations where the board provide services and applicants are not under any restriction relating to residence or to geographical considerations.

The board went on to say in their report that even with the expansion from the funds of suitors provisions, they will still be quite some distance from their goal of achieving a nationwide legal aid service. I will return to that matter in a moment.

The board also welcomed the initiative taken by the Minister of State with the responsibility for family law reform, Deputy Fennell, in setting up a steering committee to prepare a pilot scheme for conciliation. That pilot scheme was launched in July of this year for a three year period. It seems to me to be premature on Senator Hillary's part to forecast that funding will not be adequate. The board explained how the legal aid scheme can benefit from such a service as a result of the high proportion of cases, particularly in the family law area, which could and should be resolved without recourse to litigation. In this connection the board made a very telling point, which has important implications for policy, when they said that the legal aid scheme was frequently used by people who should be using other services instead, such as marriage counselling or conciliation services, a point taken up by Senator Eoin Ryan in his contribution to the debate. We should be conscious of the fact that we cannot oblige people to forego their right to litigation if that is the course they choose.

It has been suggested before now that we are a very litigious nation, that we have a greater propensity than others to regard litigation as a first rather than a [280] final option and to ignore other possibilities for settling disputes. Apart from those quoted by the board, there are many examples of this outside the area of family law, for example in the important area of personal injuries litigation. It is fair to interpret the board's remarks as a warning of the need to ensure that such expansion of legal aid as does take place reflects a genuine demand for essential legal services for people who cannot afford to pay for such services themselves, and have no alternative but to seek a legal solution to their problems.

It would be fair to say that the main difficulties that the Legal Aid Board referred to in their report for 1983 and 1984 were the need for further expansion of services, which they see as the central problem — various Senators repeated this view — the high proportion of applicants deemed ineligible for services under the means test limits then obtaining, and the need to put the scheme on a statutory basis. I would like to deal with these matters.

The question of further expansion depends entirely on the availability of additional public financial resources. The board clearly recognise this. When it was decided to allocate moneys to the Legal Aid Board from the Funds of Suitors to establish the four law centres to which I referred earlier, the Government announced also their intention that some further law centres would be established in 1986 and 1987 — if sufficient moneys remained in the dormant accounts, after the various other commitments that arise under the Funds of Suitors Act, 1984, had been met. My predecessor made it clear, in public statements on this matter, that the final allocation for legal aid would depend on the eventual cost of constructing the new childrens' court in Dublin, which is one of the projects being financed under the legislation. The other factor on which the availability of funds depends is the accrual of interest on the funds before they are all drawn down under the legislation.

A contract for the children's court was placed last April. It will cost more than had been estimated originally. At the [281] same time, although they are a blessing for hard pressed borrowers, falling interest rates have had an adverse effect on the yield from the investments in the dormant accounts. There are occasions when it must be recognised that by doing good we may also be doing evil. I see Senator Ross finds that to be a particularly perspicacious remark, and no doubt he may have more to say about that in another debate.

As a result, there is still a considerable degree of uncertainty as to the amounts that may be available from the Funds of Suitors to finance further expansion of civil legal aid services beyond the four law centres that are going ahead already. That uncertainty is likely to persist for some months yet. I hope that the position will become clear by the end of the year and that the board will be enabled to expand their services further as soon as financial circumstances permit. The House, and in particular the proposers of the motion, may be assured that to the extent that my previous functions have given me any insight into the possibilities of making funds available for these kinds of purposes, those insights will be used to the full.

The tight constraints on public financial resources now and in the foreseeable future have important implications for policy in relation to the further development of our civil legal aid services over the short and medium term. They impose on us a clear obligation to use the limited resources available in the most cost effective way so as to optimise the benefits to the community. During the debate we have heard calls for fundamental changes in the scheme, calls to expand the service to cover appearances before tribunals, to cover test cases, to cover education as to legal rights, social welfare matters and community development. There have also been demands to include the services of private practitioners within the scheme so as to provide for a choice of solicitor.

Such demands are not new. Aside altogether from the policy issues which they raise — and they are many — I am convinced that the proper way to develop our civil legal aid services is through the [282] systematic expansion of the existing civil legal aid scheme until the services provided by the Legal Aid Board can be said to be readily available on a nationwide basis. Until that has been achieved, I do not believe there will be any real scope for a major extension of the provisions of the scheme. Unfortunately in this area, as in so many others, we must crawl before we walk and there are a great many leaps which we might like to take that cannot be taken until we are steady enough on our feet to begin to run. That is a simple matter of resource availability, as was pointed out by Senator Eoin Ryan in his contribution to this debate.

Senator Durcan criticised the scheme as being too bureaucratic and thinks too much is being spent on administration. This has been said before, but the simple fact of the matter is that the administrative work involved in the scheme arises mainly from the implementation of the recommendations which the Pringle committee made in relation to such matters as the means testing of applications, eligibility criteria, procedures for application and grant of legal aid and advice, and to other matters. We have now established a sound administrative base for the scheme. The current expansion is being achieved without any significant increase in the board's headquarters costs. I am given to understand that the board feel that any additional resources that can be provided can be channelled directly towards the provision of extra services at law centres and part time “clinics”.

It is worth noting in this connection that during the two-year period 1983 and 1984 the board provided services to over 11,000 people at a total cost of about £2.8 million — an average cost per case of £250. The board said in their report that these figures actually understate their case load and that the average case costs are even lower. By contrast the Joint Committee on Marriage Breakdown — indeed in the section of their report which Senator Robinson used to attack the scheme — reported that the legal costs involved in taking an average family case to a hearing in the Circuit Court or High [283] Court could be in the region of £1,000 to £2,500.

Since publication of the board's report, I have approved a substantial increase in the means test limits which apply under the scheme with effect from 29 May last. When this matter was debated on the Adjournment of the House on 1 May I mentioned that I had proposals to revise the means test provisions. Subsequently I approved an increase in the eligibility limit from £3,500 to £5,500 disposable income per annum — an increase of 57 per cent. This should bring about a very large increase in eligibility for service under this scheme, and further improvements which I approved affecting social welfare recipients mean that all such applicants should receive services which may include legal representation in cases all the way to the Supreme Court — for a nominal contribution of £15. That contribution may, of course, be waived in hardship cases. The present means test limits compare very favourably with the limits which apply to civil legal aid services in Britain and Northern Ireland and mean, in practice, that a married person earning a gross income of about £13,000 and having a spouse and three children to support and with normal financial commitments will qualify for services.

Senator Eoin Ryan asked if statistics were available to show the effect on applications of the recent increase in the means test provisions. The board have informed me that in the four month period before the new limits came into operation the number of new applicants who were refused services under the scheme on grounds of financial ineligibility represented 20.7 per cent of all such applicants in that period. In the four month period up to the 30 September 1986, following the revision, the corresponding figure was 4.2 per cent. I am prepared to believe that the two may not represent a complete change in the trend, but I think the figures are, nevertheless, indicative of the effect of widening the eligibility criteria.

Senator Brendan Ryan was very critical of the means test provision in the [284] scheme, and went on to suggest that any means tested service for the poor would be a poor service. I admired the elegance and the punchiness of the phrase, but I disagree with the substance of it. I wonder how he can say that and support a motion calling on me to review the scheme in the light of the Pringle report. Senator Brendan Ryan must be aware that the means test provisions in the scheme are modelled precisely on the framework recommended by the Pringle committee, and that the committee concluded that they had no alternative but to recommend a special means test. That was because of their central recommendation that the new service should not be restricted to applicants in the weakest economic class, for example, social welfare recipients, who could afford to pay little or nothing towards the cost of legal aid and advice, but should apply also to people who are better off and who could afford to contribute a reasonable proportion of that cost from their own resources. A means test based on “disposable” rather than “gross” income was recommended by the committee in order to achieve more equity. I draw Senator Hillery's attention also to that portion of the recommendations in the Pringle report.

I would think that Senator Brendan Ryan's reference to a “poor scheme” is particularly out of place. Whatever difficulties may have arisen with the scheme, I have never heard anything but the highest of praise for the professionalism that has come to be associated with the staff who are providing that particularly important social service.

The motion mentions legislation. Legislation to put the civil legal aid scheme on a statutory basis is overdue and the board have asked me to give priority to his matter. The reason it has not been possible to introduce the necessary legislation is the fact that a number of other urgent legislative commitments needed priority attention in my Department in recent years. As far as this scheme is concerned, the absence of legislation was not an impediment to the provision of service to the public [285] or to the board's independence. I would not accept the contention that the fact that it has operated on a non-statutory basis has been a source of uncertainty or instability in the scheme up to now. I am glad to say, however, that recently I was able to inform the chairman of the board that work has commenced in my Department on preparing the necessary legislation, and I expect progress to be made on that front fairly quickly.

The legislation will place the existing scheme on a statutory basis. While I will be prepared to consider some changes in the scheme which might be recommended in the light of experience of its operation so far, I have already indicated that I do not believe there is scope for any fundamental change in the policy underlying the scheme. I am satisfied that the existing scheme meets the essential needs of people who cannot afford to pay for legal services and that the main task now is to continue the recent expansion of the scheme through the provision of more law centres in line with the board's request as soon as resources permit.

Senator Robinson takes the view that an effective civil legal aid scheme should be able to identify areas of need. By that I understand her to mean that the examination of the type and range of cases coming through the scheme should, in some instances, lead to the conclusion that there is a deficiency in law or administrative practice. I take that point. I can, in fact, tell the House that, even since February last, I have had occasion to initiate action partly as a result of situations revealed by inspection of the cases coming through the civil legal aid system. I do not wish to be more specific now, since I am preparing proposals to put to Government, but I want to assure the House that I am aware of this aspect of the system.

Senator Robinson also suggested that we should broaden our view of the scheme, in order to make each centre a means of access to education in relation to law and rights, a focus for community activity in these areas and a means of access to power in the community — in [286] the context of knowledge being power. I disagree with that view. The function of civil legal aid is to provide people who would otherwise be unable to afford it with a means of vindicating their rights under the Constitution and the law. We may, in the process, learn of or identify deficiencies in the law, but it is not part of the function of the apparatus of the State to move into areas which are properly the concern of political movements. I think Senator Robinson will agree, on reflection, that State-sponsored political movements are to be mistrusted and will remember many cases in which she has strongly and cogently voiced her opposition to such movements.

Returning to the text of the motion, I must say that this is not the first time the scheme has been criticised in terms which would imply that the recommendations of the Pringle committee were not followed when the terms of the scheme were decided. The plain fact is that the provisions of the scheme reflect, generally, the recommendations made by that committee. In some important respects the scheme which was introduced in 1979 was more ambitious in scope and eligibility than the committee anticipated in their report. To give one example, the committee anticipated that it might be necessary to introduce a more limited, interim scheme first but, in the event, the scheme introduced was based on the committee's blueprint for a comprehensive scheme, though subject to specific exceptions.

There are some important differences, and some of the committee's recommendations were not followed, for example, in relation to the non-inclusion of private practitioner services in the scheme and the exclusion of certain cases from the scope of the scheme. But these questions were decided by the Government of the day on grounds of policy, and that is the prerogative of Government. I see no convincing reason for reviewing them again at this stage. I hasten to point out that it is neither a criticism of nor slight on an advisory committee when some of their recommendations are not followed in subsequent Government decisions.

[287] In the matter of the involvement of private practitioners in providing civil legal aid, it is interesting to note that in Britain, where the civil legal aid and advice schemes have operated exclusively through the private profession, fundamental changes are being proposed, involving initially, the recruitment of salaried solicitors operating from legal advice centres to replace the existing legal advice scheme. There is considerable debate in Britain in this general area, much of it provoked by the escalating cost of the existing private practitioner service.

The motion mentions the judgment of the European Court of Human Rights in the Airey case. Senator Robinson and other Senators said the introduction of the civil legal aid scheme was a response by the then Government to that judgment. This is not the first occasion when a Minister for Justice felt called upon to put the record straight in this connection. The facts of the matter are that, following on earlier commitments, the Government of the day announced in May 1979 that they had approved the main features of a scheme of civil legal aid and advice and undertook to introduce a detailed scheme by the end of that year. The decision of the European Court was delivered in October 1979 and the detailed scheme was published in December 1979.

In their October 1979 judgment, that court did not decide that Ireland was in contravention of the European Convention on Human Rights because a scheme of civil legal aid did not exist here at that time. What the court decided was that violations of certain articles of the European Convention had occurred because the applicant who had taken the case did not enjoy an effective right of access to the High Court to seek a particular remedy. Legal aid as such was not the issue and in fact the court had already ruled that there is no direct right to legal aid under or by virtue of the provisions of the convention.

The court did indicate that a scheme of civil legal aid is one way to facilitate effective access to justice, but it is not the [288] only way. Simplification of court procedures and increased jurisdiction for the lower courts are other ways. We opted for a legal aid scheme as being justified in its own right and as being something in respect of which there was already a commitment.

As regards the complementary approach to improving access to justice by simplifying procedures and court reform the Courts Act, 1981, effected considerable increases in the jurisdiction of the lower courts, including jurisdiction in family law matters. It is very interesting to note that this legislation has had a dramatic impact on the work of the Legal Aid Board in regard to family law cases. The board give statistics on this matter in their report. They show that the proportion of family law cases pursued by the board in the District Court has risen from 49 per cent in 1981 to 72 per cent in 1984 as a direct result of that legislation. They also report that the number of High Court proceedings fell from a peak of 381 in 1981 to 71 in 1984. From these figures it is clear that considerable progress has been made in recent years in improving access to justice by reform of the legal system.

Senator Robinson mentioned the same trend, but in the context of a need for a family law court or tribunal. The House will remember that the statement of the Government's intentions with regard to marriage, separation and divorce mentioned a number of proposals relating to a family court. That matter is currently under examination in my Department with a view to proceeding along the lines set out in that statement of intention.

I hope I have said enough in my contribution to convince Senators that, despite the present difficult financial climate, the civil legal aid scheme is being expanded gradually to new areas, and that the problems which the board mention in their report have been, or are being, dealt with.

I can assure the House that I shall continue to do all I can to advance the further development of the board's services under the existing very valuable civil legal aid scheme. But for reasons [289] which I have outlined I cannot accept that there is a need to review the present scheme as proposed in the motion, beyond the commitments I have given and, accordingly, I must repeat what I said at the beginning of my remarks, which is to the effect that the language of the motion is, in my view, exaggerated.

Mr. Browne: Ní féidir bheith sásta, is dócha, le córas rialtais ar bith sa tír seo go mór mhór san lá atá inniu ann nuair atá sé de nós againn bheith ag gearáin lá i ndiaidh lae faoi gach rud. Caithfidh mé a admháil go bhfuil sé deacair a bheith sásta le córas dlí mar tá a lán rudaí ann. Tá ceist airgid, ceist dlí, ceist na ndlíodóirí agus ceist cearta shiabhíalta. Táim cinnte go bhfuil tús an-mhaith déanta againn agus tá súil agam go mbeidh an córas seo ag dul ar aghaidh go sásúil sna blianta atá rómhainn.

I welcome the Minister's attitude towards this question and I am quite sure he will deal with the problems that are there and which I do not want to go into because I see no great advantage in discussing whether the body is non-statutory or statutory. So far as I am concerned, the people who deserve to get protection get that protection. It makes no difference to them whether it is a statutory body or a non-statutory body.

I have some personal experience from helping people who came to me and I found in general that the scheme was quite satisfactory. We have a centre in Carlow but there is one difficulty in that the solicitor who comes to help there travels 50 miles. Like the previous speaker, I wonder if there could be savings if that solicitor had not to travel that distance and if one of our local men got the job of advising at the centre and dealing with the cases. Obviously an excessive amount of travelling does not help. The person concerned is tired, he spends a lot of time on the road. If he were in his own office he could deal with problems more quickly.

There is one problem that arose in one particular case. As far as I could see, it was not so much the man's income that [290] was taken into account when they assessed whether he was entitled to free legal aid. The fact that he owned a piece of equipment seemed to convince them that he was well off. It is like people who are unemployed: they may have a very nice house and the social welfare officer may say to them: “You have lovely furniture in this house”. Unfortunately this is often bought before people run short of cash. There is no great point in telling them that they look very comfortable and that they have great furniture. They cannot eat it, neither can people sell what they have in order to come below the legal aid limit.

The question of marriage problems getting priority is a reality of our time. At the same time with new regulations coming I hope that the backlog of marriage problems will ease and that people who have other problems will be dealt with. Whatever else happens, we should not cause people to suffer through the lack of a legal defence because they cannot afford to pay for it. We should make sure that we do everything possible to help. I realise it is not possible to have everything perfect. We cannot provide enough money for many of these services but we should make every effort possible to protect those who may not be able to protect themselves. As I said, I am not one bit fussed what we call this body that is set up so long as it does the job. The figure has been given of 11,000 cases dealt with at a cost of £2.8 million. If we spent £2.8 million and helped to protect innocent people it is money well spent. I would have no great worries about spending money for that purpose.

Mr. Ross: I should like to congratulate my university colleague, Senator McGuinness, for putting down this motion which I think is well overdue, as has been admitted by successive governments. The reason this motion is important is that the denial of civil legal aid is a denial of justice. It is a denial of what is really a basic human civil right in this country. That is why it is important and that continues to be the case.

I welcome the commitment from the [291] Minister in that he will push to have it extended as quickly as possible. I understand fully the difficulties he faces. I would like to just issue one word of caution on a motion of this sort. We are all concerned about the underprivileged, about the civil rights of the poor, and of those who cannot afford lawyers. However, motions come to this House without costings. I tried to raise earlier today the position of the public finances which are very critical. While I do not quarrel with this motion for one moment, I think that the motions on the Order Paper of this House tend to call for public expenditure without saying where it is coming from. Even though this motion is morally right and it is morally right that the civil legal aid scheme should be extended, there is an obligation on us if we are doing this to say, “Yes, but there are enormous financial constraints on the Exchequer.” The reason this is being delayed is not through any dragging of feet by successive Ministers but really through natural clumsy bureaucracy and, secondly, because there really is not very much money in the Exchequer. One should be sympathetic to that point of view even if one does not accept it. We shall have to accept that point ourselves.

Although this scheme has been promised since 1979 or 1980, it should be acknowledged that the situation has improved a great deal and that we are moving in the right direction. Although legal aid has not reached the sort of status of health and education to which services everyone has a right the situation has improved. I welcome the attitude of the Minister and I welcome the motion.

Mrs. McGuinness: I am glad to have the opportunity to conclude this debate. I suggest that as my colleague, Senator Robinson, is not exercising her right to conclude which would allow me to have an extra ten minutes as well as her 15 minutes, perhaps the Chair will be a little generous towards me if I tend to exceed my 15 minutes time as I feel I am replacing the 25 minutes due to both of us.

[292] An Cathaoirleach: My problem is that I am governed by Standing Orders which only allows 15 minutes.

Mrs. McGuinness: Perhaps like Nelson on a famous occasion the Chair might develop a blind eye now and again, and use his discretion. There are a number of points I would like to make about the legal aid scheme in itself and also I wish to reply to some of the remarks made by the Minister has a commitment to providing Minister has a commitment to providing a reasonable civil legal aid scheme. I am sorry he feels that the word “deplore” is so overcritical and alarmist. I do not think that the word “deplore” is really quite as strong a word as he seems to consider it. Perhaps he is being a little oversensitive about it. If one is going to criticise a scheme for its deficiencies, one must use some sort of word to describe it and Senator Robinson and I felt that the word deplore was a reasonable word to use.

The Minister said he does not understand why we related to the Airey judgment and to the Pringle scheme in the way we have. Briefly, I should just say that in a sense his own speech carries the seeds of why we have used this particular way of referring to it. He refers to the judgment of the European Court in the Airey case, in a sense to say that a commitment to the scheme was made in May 1979 and the judgment did not come out until October 1979. In the case of the European Court it is usually fairly clear what way things are moving some considerable time before the actual judgment issues. I remember very clearly the period of time that led up to the setting up of the legal aid scheme because I was involved in the then FLAC system. It appeared at the time that it was a combination of the pressure put on by FLAC and public opinion and the events leading up to the Airey judgment and the Pringle report which led to the establishment of the scheme.

As the Minister has said, the Airey case was basically about an effective right of access to justice. This is precisely why we have suggested that the present scheme is, to some extent, to be [293] deplored. We do not feel it genuinely gives an effective right of access to the courts because it has such considerable limitations, some of which I will deal with later. It is not a question of saying that a civil legal aid scheme is the only way to give an effective right of access to the courts. I agree with the Minister that there are other ways although I disagree with him when he said that the change of jurisdiction under the Courts Act, 1981, was a good way of giving an effective right of access to the courts. My practical experience of the kind of justice that one gets access to as a result of the Courts Act, 1981, makes me feel that this is not an effective way of meeting the Airey judgment. Nevertheless, I do not think the present limited scheme gives what one would describe as an effective right of access.

The Minister referred several times to the Pringle report and said the scheme as introduced did go along with that report. He criticised my colleague, Senator Robinson, for saying that the kind of law centre we have should be broadened to take in things like education in legal rights and so on but I must point out to the Minister that the Pringle report stated:

We consider that centres should not be limited to legal advice and aid activities. The staff of the centres should be free to take part, within reason, in any activities which would be consistent with the aim of providing what we have defined as a comprehensive legal aid and advice service for the community. They should, therefore, for example, be free to assist in organising programmes of education on legal rights etc. This type of activity will be quite important if they are to make progress in identifying hidden need. A degree of flexibility and imagination on the part of those who are responsible for legal aid services at administrative and political levels will be called for if centres are to develop as institutions which people in underprivileged areas can accept and trust.

I suggest to the Minister that that is precisely what Senator Robinson was talking [294] about and precisely what the Minister is telling us he not only cannot do but does not even want to do. He is wrong in suggesting that the present legal aid scheme is really going along with the Pringle report when it leaves out this important area. It is noticeable that the Coolock Law Centre, the only law centre outside the civil legal aid scheme, has continued to try within the most appalling financial limitations, financial limitations which are much worse and more uncertain than the financial limitations of the Legal Aid Board centres, to provide precisely this kind of service, this interlocking with the community, this provision of self-help groups, education in legal rights and so on, which are desperately important to those who have not the kind of educational background, know-how and so on the ordinary person who can afford to employ a private solicitor has. Therefore, the scheme does not fulfil what was suggested in the Pringle report, even if one only took this particular area.

The Minister referred to the fact that the Legal Aid Board acknowledged that the news that they would have new centres in Tralee, Athlone, Tallaght and so on was most welcome. Of course it was most welcome news but, perhaps, it was most welcome because there was so little welcome news up to then about an expansion of the scheme. It is acknowledged in the chairman's foreword to the 1983-84 report that this is the first major expansion of the scheme. Bearing in mind what was hoped for when the scheme started in 1980, this is a very small expansion and, even with the limited type of law centres we have, we are still a very long way from providing a countrywide service.

It is true that there are certain cases which are better dealt with by mediation or conciliation and, of course, both private solicitors and Legal Aid Board solicitors are dealing with such cases now but there will always be cases which require some sort of legal decision. Quite often in those cases, even where most things could be decided by mediation, there may very well be need for legal [295] aid and advice in regard to somewhat complex property issues which are really not particularly well dealt with by mediation services.

The Minister referred to the fact that we are a litigious people. That may or may not be true, but it is undoubtedly true on practical experience that there are certain people who want their day in court, as lawyers put it, who want the opportunity to have their say and have a judge decide rather than simply working through some kind of conciliation and mediation service. Those would be included in the Minister's phrase, “those who genuinely need legal services”. The Minister said we must crawl before we can walk, and that is a reasonable way of putting things except that our crawl has been so slow in the years since the Legal Aid Board scheme was set on foot that it could practically be thought of as a snail's pace or for a long time having been completely stationary rather than even crawling forward. The hope that we would ever reach the stage of being able to walk is very far off if the rate of crawling we have had up to now is anything to judge by.

It a little unfair of the Minister to say that, because the average cost of a legal aid case under the board is £250, or perhaps lower, and that the marriage breakdown committee said that the average cost of a case which goes to a full hearing in the Circuit or High Court is £1,000 to £2,000, we are getting good value for our money. That is a bit distorted because the average cost takes into account all the cases that do not go to court, all the cases where separation agreements are drawn up and so on. If one did this costing in a private solicitor's office one would certainly find that the average cost per case is far lower than the average cost of a case which goes to a full court hearing. The figure given in the marriage breakdown committee's report was one for a case which goes to a full court hearing. I suggest that if one looked at the figures of the Legal Aid Board for the average cost of a case that goes to a full hearing, it may well be rather less than that for a [296] private solicitor. That in part is due to the fact that a scheme was arranged between the Legal Aid Board and the Bar Council whereby, as a contribution to the community, counsel would act for the Legal Aid Board at a scale of fees which worked out at roughly half what one would be paid for an ordinary case with a private solicitor.

I know lawyers are constantly criticised for being money grabbing above all but, the Legal Aid Board are helped to run their affairs economically by the fact that they are getting counsel's services for far less than a private solicitor would get them for. One of the complaints I would make about this in the scheme is that the Legal Aid Board send down to their solicitors from their bureaucracy, as it were, a decision that, say, ten hours or eight hours of counsels' time, or whatever, is to be allocated to a particular case and woe betide the counsel who finds that the case takes longer than the allocated number of hours. One could get into terrible trouble if a case goes on a bit longer than the Legal Aid Board think it should but is one supposed to stand up in court and say, “I am very sorry, your Lordship, but as my eight hours allocated by the Legal Aid Board have now run out I must withdraw from this case and my client will appear for himself or herself.” In many of these ways the legal aid scheme works in an overly bureaucratic fashion and not enough scope is allowed to the solicitors to make decisions.

These are decisions of a legal nature which can be made about the length of a case and whether a person has a good case to defend. From time to time within the Legal Aid Board scheme the board or a committee of the board or in some cases an official of the board as set out in Part IV of the board's scheme in section (4) (2) will determine whether there is a prima facie case for granting a certificate on whether a person has a good case to defend or a good case to make. It would be a great deal better if the solicitors employed in the board, the people dealing with the clients, the people with the [297] legal qualifications and also the qualification of being experienced in the type of legal case which is dealt with all the time by the Legal Aid Board law centres should have freedom to decide in this area.

I recall one case where a woman who was basically illiterate was the respondent in a nullity action. Nullity actions are very complex even in the pleadings and in the various ways in which they are dealt with in the High Court. They cannot be dealt with in any court but the High Court. This lady, whose husband had got legal aid to bring the petition, sought legal aid from another law centre to defend the petition. She was acknowledging the fact that the marriage had not been consummated but nevertheless there were a number of issues arising from it that needed to be dealt with in the case.

The fact that parties agree that a marriage has not been consummated does not provide the grounds for a nullity decree and it is the duty of the court to find out a great deal more about it. I do not have time to go into detail about it but nevertheless this lady was refused legal aid by a decision of the board because she acknowledged that the marriage had not been consummated. She appeared in the Master's court unaided and unable to cope with the sort of situation that one comes up against in court. A well disposed solicitor and counsel took on her case for nothing. She got legal aid but not through the board. This kind of decision as to who should get legal aid on account of the kind of case they have to defend or the kind of case they have to make would be best taken by the solicitors within the scheme.

I should like to pay a tribute to the solicitors who work the scheme and I am in absolute agreement with the Minister when he referred to the staff of the law centres. My experience, and it is extensive experience of the work of the solicitors within the Legal Aid Board, is that they are providing, within limitations of the scheme, an excellent service and there are first-class solicitors working in the family law area. The board and the [298] scheme could place more reliance on their abilities to decide who should get legal aid and who should not get it, as against the means test.

An Leas-Chathaoirleach: The Senator has one minute.

Mrs. McGuinness: If I have only one minute, perhaps Senator Robinson might be allowed to speak as well seeing that she has not right to reply.

An Leas-Chathaoirleach: Did the Cathaoirleach before he left the Chair think you were replying?

Mrs. McGuinness: He did. I admit that. He thought I was replying because Senator Robinson had not returned to the House at that stage. Senator Robinson has not had an opportunity to——

An Leas-Chathaoirleach: The Leader of the House, Senator Dooge is here and may be he will assist me. Could we allow a short time to Senator Robinson?

Professor Dooge: I have no objection. The longer this debate has gone on the smaller the differences have been. If an additional speech from Senator Robinson could lead to finding ourselves still closer on this point rather than further apart, I certainly would be in favour of allowing her to speak.

Mrs. Robinson: I could not promise that but I will not take very long to make my points.

An Leas-Chathaoirleach: Because a ruling has already been given on time, could we have a specific time then to finish? It is now nearly 7.40 p.m. Would the House agree to about 7.45 p.m.?

Mrs. McGuinness: Very well. Thank you very much for assisting me in this way. I have just one minute to finish. As far as the legal aid scheme is concerned I return to the necessity to base it on a statutory provision. While the Minister and some of the other speakers may have [299] felt that this made little difference, that is not the view of the chairman of the Legal Aid Board. I go along with Mr. Fennelly in suggesting that it is essential that there should be a statutory basis for the scheme. If we are to go on improving access to justice, we need a broader type of scheme to look into the kind of areas to which the Pringle report referred in the passage I quoted. While I acknowledge that there have been improvements in the scheme — I welcome the lifting of the means test ceiling — we still have a very long way to go and I would like our crawling to take on a bit of speed.

Mrs. Robinson: I apologise for not being here at the commencement of the debate. I had to visit somebody in hospital, but I have read the Minister's contribution and I welcome the opportunity which the House has afforded me of making some further points to support and perhaps elaborate on some of the points which Senator McGuinness made in response to the Minister's contribution.

I wish to begin with the points that I emphasised in my own contribution initially and that is the necessity for legislation. I am glad that the Minister concedes that necessity; indeed I do not think the need for legislation has at any point been denied. It is sad that he has put openly on the record of this House that frankly it did not have any priority and that is why we have not had it although it was promised from early 1980, the scheme having been introduced in 1979. That, more eloquently than anything that Senator McGuinness or myself could say, is part of the problem, that this important area does not have the kind of priority with successive Governments that we would like it to see. It is extremely important that the scheme should have a statutory basis.

I hope the Minister will take away from this debate a sense of the importance of introducing legislative proposals in the matter at the earliest opportunity. It is also part of that debate on the importance and priority to be given to civil legal aid [300] that we understand what we are talking about. Senator Brendan Ryan's speech was a very thoughtful contribution by a non-lawyer. He went back to the basics of what we are talking about, the need for provision of legal services in the same open way that we provide medical services. That is really what we are talking about. People assume quite rightly that they are entitled to medical services even if they cannot afford to pay for them and that is what society has sought to create. There may be some problems but the principle of that is conceded.

In the legal area we have not got to that stage. Access to legal aid is extremely limited and narrow. There is no access to discussing — as you might discuss with your GP — whether you need specific further legal aid or remedies. It is all done in a kind of clinical, narrow way which does not mean that people will genuinely have access to legal services of a preventive sort, at a stage where the problem is still one that might well be helped by good legal advice, good, common sense advice combined with legal knowledge of the particular framework which could head off a worse situation. That is true in the family law area, in relation to property and to contractual problems; it is true right across the board. None of that exists.

To the very limited extent that we provide law centres for people, they have to travel to a law centre where they do not have any choice of solicitor or any prior relationship with that solicitor and they get ad hoc advice on their problem which is identified in the context of a visit for that purpose. That does not help to redress the imbalance in very many communities in Ireland.

I come back to the emphasis I placed on the need for greater education about the law and legal rights so that people are aware in the areas of social welfare, employment law and family law of the relevance of law to those problems and of the potential of law in helping them to cope with some of the difficulties they encounter. We do not cater for any of that whole area. It is in the context of the Minister's commitment now to give legal [301] aid some priority and to bring forward proposals for legislation that I urge him to think again about some of the values which those of us who are familiar on the ground with the scheme are urging on him. We urge him to look more closely at the importance of access to legal services in our society.

The Minister referred to a concern on the part of the Legal Aid Board or of officials in his Department that if the scheme was more available and more accessible to people that they might use it in a context where they need other services such as medical, psychiatric, or conciliation services. Like the Minister, I would expressly welcome the pilot scheme to promote conciliation as a way of resolving a great many problems in the area of family law. I hope to see further developments and expansion of the conciliation scheme and, indeed, of family tribunals linked to conciliation services. I would say that far from the accessibility of legal services, meaning that they will be somehow overused by people who do not need them, the ideal would be that people would have access to legal services and then have less need to fall back on psychiatric services, medical services, marriage counselling — services at the stage when the matter has gone too far for steps to be taken which might be constructive. Therefore, the real argument for rethinking our approach to the provision of legal services and ensuring the accessibility of legal services is in fact one which can reduce public expenditure and reduce the need for greater expansion in other services of the State.

I have necessarily concentrated my brief reply on the response of the Minister because one of the primary purposes of having a debate in this House is to have the Minister present, as he has been, and, in particular, to make a contribution in relation to the provision of legal services. As an overall comment, I would have to say I find this a depressing contribution because it has not budged on the underlying values and because it sees the provision of access to legal aid as being a few more law centres using the funds of suitors. It is important that we have more [302] law centres but it is absolutely fundamental that as a society we understand the need for greater access, and greater confidence among the public to avail of access, to legal services. Again, I would refer to the comments of a number of Senators when they talked about how intimidating the law is and what an intimidating atmosphere we have in our courts. All of these are matters of deep concern to us and they reflect again on our approach to law and to the provision of legal services.

I hope that the Minister and his advisers will be influenced by this debate and by what has been said on all sides of the House in emphasising the importance of a comprehensive legal aid scheme but also in emphasising the importance of a genuine access to confidence in availability of legal services and of remedies in our courts which at present is not the case. At present it is still the case if you can pay for it, you will get it all right. If you cannot pay for it, you are on the hazard, you may or may not get through the treadmill of the means test of the law centre, you may or may not be near enough to a law centre. When you get to the law centre you may or may not get enough time there to spell out the complicated nature of your problem and you may or may not be aided from then on. It is still a system that we cannot be happy in. I stand over the word “deplore” in the motion. I think it is quite a modest word in all the circumstances. Those working the scheme would agree with Senator McGuinness and me that the word is a proper one with which to frame a motion of this kind.

An Leas-Chathaoirleach: Is the motion agreed to?

Professor Dooge: The answer to that question is a difficult one. Is the emphasis on the word “deplore” agreed to? No. Are some of the details of what has been said agreed to? No. Is the concern of the independent group of Senators about the inadequacy of the present scheme shared [303] by other groups in the House? The answer is yes.

Question put and agreed to.