I move:
That Dáil Éireann rejects the administrative scheme for Civil Legal Aid which the Government is seeking to implement because
(i) it has no basis in legislation and therefore cannot create a right to legal aid and establish an independent Legal Aid Board to administer it,
(ii) it is not a comprehensive scheme,
(iii) it is not a free scheme,
(iv) it would deny a choice of solicitor to those seeking legal aid and introduce a dispensary system of legal services for them,
(v) it would discriminate against rural Ireland and those living in small towns
and calls upon the Government to introduce immediately the necessary legislation to establish a comprehensive scheme of legal aid along the lines recommended by the Pringle Committee.
This is the second motion on civil legal aid which I moved in this House on behalf of the Labour Party urging the Government to implement a comprehensive scheme of legal aid and advice in civil cases along the lines of the scheme recommended in the Pringle Report. The first such Labour Party motion was almost exactly two years ago, on 9 May 1978. We tabled that motion four or five months after the issue of the report. A further 12 months elapsed from the date of that debate to May 1979 when the Government spoke further on the question of legal aid and announced their plans to implement what they described as a scheme of legal aid based generally on the comprehensive scheme recommended in the Pringle Report. That long delay can be said to be indicative of the low place civil legal aid occupied in the Government's order of priorities.
Why the elimination of such a fundamental injustice amounting to the denial of access to the protection and remedies of the law to those who do not have the wherewithal to pay for it, should not have been dealt with more expeditiously is very difficult for anybody with any conception of fair play to un derstand. This is particularly so in the light of the very detailed recommendations outlined in the Pringle Report for the introduction of a comprehensive scheme of aid.
While the Pringle Report made recommendations for an interim scheme, it is very clear to anybody studying the report, that they favoured very strongly the implementation of a comprehensive report. They issued an interim report only because it was part of their terms of reference. As I said, they recommended that the comprehensive scheme be based on an Act of the Oireachtas, that it should establish civil legal aid boards to administer the scheme and that law centres should be operated in conjunction with a legal aid panel of lawyers in private practice in respect of all types of civil court proceedings and tribunals. That scheme was costed at £2 million per year, a remarkably low figure in terms of the money spent on services generally.
Now that the Minister has finally placed a scheme before the Houses of the Oireachtas we find it is based neither on the comprehensive scheme recommended in the report nor does it provide anything resembling equal access before the law for citizens of inadequate means. That is why this second Private Members' motion by the Labour Party has been tabled. Our first objection, as our motion indicates, is that it is not based on legislation. There is no doubt that the Pringle Report recommended that any scheme envisaged by them would have its basis in legislation passed through both Houses. The Minister's scheme does not establish a right, founded in law, to legal aid nor can the board have the independence essential for the purpose for which they were set up and for the work they set out to do.
The Pringle Committee provided draft heads of a Bill on the last page of their report. If the Minister had given the subject the importance it merits he could have used or modified those draft heads. This would have facilitated a full debate in the House and would have made the Bill open to amendment. That sort of discussion, amendment and input of views on legal aid is vitally important in a scheme which purports to cater for people who hitherto have not been catered for, and to meet needs in our society which so far have not been met. Instead, we have a scheme which has been described by Law for All, a body eminently qualified to pronounce on the scheme, as inoperable and a totally inadequate response to the pressing need for legal aid. Before considering in some detail the scheme the Minister seeks to introduce, may I turn to some of the recommendations in the Pringle Report which have been glaringly ignored in the Minister's scheme?
The committee were very strong on the recommendation that the scheme, as well as being concerned with the provision of legal aid and advice, should be concerned with the dissemination of information about the law and with research into establishing the nature and extent of hidden legal needs. They were also strong in saying that the board should make an analysis of the results of their work with a view to making appropriate recommendations in relation to law reform. That is a very important aspect of the work of a legal aid board.
We are hoping to deal with bringing the process of the law to the people to whom it has been denied hitherto. If we have a proper scheme we should be meeting new needs and identifying legal needs which up to now had not been identified because the people concerned did not have the capacity, the know-how or the money to bring their cases before a court of law or to seek legal advice. It probably did not occur to many of these people that some of their problems could be interpreted as legal cases. We are dealing with a very new area and we are hoping in any scheme of legal aid to cater for people who have hitherto been denied their rights or denied access to the process of the law. For that reason it is very important that this analysis be done and that the information a board would glean in their day-to-day work, the meeting of new needs, the evaluation of the extent and depth of these needs, should be capable of being translated into proposals for law reform. There is no means within the present scheme whereby this very important aspect of the work can be catered for.
The Pringle Report recommended that there should be a considerable degree of flexibility in the overall approach to the scheme. This is very important. We should have in the scheme an allowance for something we have not come up against before, a scheme that would be capable of being interpreted generously in favour of the people to whom we would hope to bring the process of the law. That report recommended that legal aid and advice should be co-ordinated with all the social services. All bodies who have reported on the need to set up law centres were adamant that there should be close links between law advice centres and other social services.
As I stated in this House two years ago when speaking to a Private Members' Motion, in private practice there are quite a number of solicitors who have not access to social services. In other words, they have to deal with cases which should be operated by the social services. At present there is not a link between them. I do not think that the proposed scheme of the Minister will strengthen any link there may be or make availability of the social services any more realistic for people going to legal aid centres.
There is no provision in the Minister's scheme to facilitate the taking of test cases by social groups in the community. Far from facilitating this type of action, it appears to me that the Minister's scheme sets its face completely against test cases. Indeed legal aid would be refused to a body of persons who would benefit from a test case for which legal aid would be given. This is a very short-sighted and narrowminded approach to the problems of people on whose behalf a scheme of free legal aid should be available anyway.
The Pringle Report recommended that a more flexible approach should be adopted to the means test. A very rigid means test is imposed, but I will deal with that at a later stage. It seems to me that in any new scheme such as this there should be a much more flexible approach than the Minister's scheme envisages. Indeed it seems to me the scheme is completely inflexible as far as the means test is concerned.
The Pringle Report recommended that applicants should have a free choice of solicitor or counsel, and this is where the Minister's scheme falls down badly. There is no provision in it for a free choice. There is a fundamental difference between availability of recourse to the law in this scheme for those who have inadequate means or who are without any means and those with the financial capacity to engage their own solicitors or counsel. The Minister's scheme is very limited. It will deprive people of inadequate means of availing of legal aid to the same extent as those with money. If we are serious about bringing the protection of the law to people of inadequate means we should not have the blatant difference in the Minister's scheme between poor people and those with means.
I will go into the Minister's scheme in detail and deal with some of the defects I see in it. I have been helped in doing this by the sub-committee examining civil legal aid, the Law for All Committee. We are indebted to them for the detailed work they have done on the Minister's scheme. I agree totally with the criticism they level at the Minister's scheme. Their general opinion of the scheme is that it is totally inadequate to meet the need that exists in this area.
Part 1 of the Minister's scheme deals with an area in which the Minister, if he were seriously concerned for the needs of the people who should benefit by a scheme, could have broadened the provision. It is true to say that excluding community groups could work to the disadvantage of people in the lower income group, particularly those in disadvantaged areas. The scheme militates against the taking of test cases on behalf of such people. That part of the scheme should be broadened to enable disadvantaged groups to take legal action to redress some of the more glaring wrongs in society.
Part 2 of the Minister's scheme deals with administration. The proposed board will not be set up by legislation—it is to be a Ministerial scheme and the board will not have the authority or the freedom that a body set up by legislation would have. The Minister would be given a power which to my mind is unusual—I have not been able to do the necessary research on all the other boards set up by Acts of the Oireachtas—and it seems to me that in respect of this board the Minister will have the power to remove a member from office for all the usual reasons, but he will also have the power to remove from office a member whose removal appears to the Minister to be necessary for the effective performance by the board of its functions.
This seems to be a very wide power indeed. I have compared the powers of the Minister in regard to this board with his powers over the Adoption Board set up under the 1952 Act and I have found in the First Schedule to the Act that the Government may remove a member from office for stated misbehaviour, incapacity or failure to attend meetings of the board. They are stated, specific grounds for removal from office of a member of the board, but to give the Minister power to remove a member from the board when it appears to the Minister to be necessary for the performance by the board of its functions is a very wide and vague power. I am not quite sure if such a power as this applies to other boards. I do not think it is the type of power the Minister should give to himself.
There is reference to the question of funding. The establishment of the service throughout the country is a matter in respect of which the board should be and could be given discretion without reference to the Minister in all cases.
With regard to the section in Part 3, the section dealing with legal aid and advice, it is laid down in the scheme that legal advice is excluded in a civil bill case where the amount involved is under £20. Indeed it is laid down also that it is excluded in the case of legal aid for civil bills, that is, where the amount involved is less than £150. I do not know what are the merits of this restriction. It may be thought that legal aid could be sought in respect of frivolous cases. But it seems to me that even in these days of inflation £20 in the case of advice and £150 constitute no mean figures in so far as some of the people we would be seeking to serve under a legal aid scheme are concerned. I am thinking in terms of people on pensions, people in receipt of social welfare, many of whom I am quite sure never saw £150 in their lives. This seems to be a very unnecessary restriction in this scheme. There are several safeguards in the scheme already and it would seem that these £20 and £150 restrictions should not be included.
Of course tribunals should not be excluded, as they are under the scheme, because tribunals and social welfare cases generally are the areas of very great importance, sometimes of most importance and most relevance to many of the people who would be seeking legal aid under the scheme. A lot of the matters which relate mostly to their lives, with which they would be most familiar, in the area in which they would perceive wrong most freely are excluded from the scheme. This should not have happened.
In Part 3 there is provision also that applicants must show that they are reasonably likely to succeed. In effect that places the onus on the legal aid applicant to show, first of all, that he has a prima facie case before he can get to court. I do not think that is correct either. I understand that there must be some restrictions but it would seem to me that this, like many other provisions of the scheme, draws a distinct line between the type of legal service that would be available to people who seek legal aid as opposed to those who can afford to pay for it.
Test cases are excluded also. That is a totally unwarranted exclusion because they constitute the method by which a lot of wrong can be redressed. To exclude test cases from a scheme such as this, to make it impossible to get legal aid, to qualify for legal aid for the purposes of a test case, or in the case where a group of people may benefit from the success of a case mitigates against the righting of some of the deeper wrongs in our society and is certainly against the whole spirit of what a legal aid scheme ought to be.
Then there is the outrageous suggestion that the applicant, or his lawyer, should inform the other side that he has actually applied for legal aid on behalf of his client. Certainly it is a delaying tactic. I do not see how it can possibly be necessary to the satisfactory working of the scheme. It constitutes a grave invasion of the privacy of the individual seeking legal aid. In any scheme such as this above all we must always have regard to the dignity of the person who must rely on a scheme of legal aid to have redress before the law. The process of the law is slow enough as it is; we are all already aware of that. But the requirement that a solicitor on behalf of a client must inform the other party that the application is made, and further inform the party again of the other party to the case that legal aid has been granted suggests an even bigger invasion of privacy and an unwarranted delay in processing the cases of legal aidedclients; I think it is twice that the approach has to be made to the opposing side. I do not see the necessity for letting the opposing side know at all. It is against the spirit of any scheme such as this that the opposing side should know that legal aid is applied for and again that it has been granted. Of course the position is that the opposing side can object, can state reasons that legal aid should not be given; possibly it would be in the interests of the opposing side to object. Even if it were not, there is certainly the over-riding question of delay and of invasion of privacy in regard to this. It is an outrageous inclusion in the Minister's scheme as laid before the Houses of the Oireachtas.
There is also the question that the board will not grant a certificate in relation to any proceedings taken in a court other than the lowest court having jurisdiction in relation to these proceedings. Again there is a distinct difference being drawn between people who have to apply for legal aid and those who can afford to pay their own legal costs. As far as I can see there is no discretion given the board in this regard, no discretion to waive that requirement; it is imperative that the proceedings are taken in the lowest court of jurisdiction, particularly where the question of jurisdiction of the court is not revised, where the jurisdiction is so low and where it can have a detrimental effect. I am thinking here particularly of the question of barring orders as they apply to family law cases, where a barring order in the Circuit Court is limited to three months. That is the limit of the redress of a person who must rely on legal aid as opposed to the person who can take his case to the High Court. The same question arises in regard to maintenance orders the limitation on the amount of maintenance one can receive. That might be considered to be somewhat unrealistic in so far as people in that category possibly would not be applying for very large sums, or be able to get large sums of maintenance anyway. But it seems that again a distinction is being drawn between the legal-aided person and the person who does not need such, that it is being carried throughout this scheme.
There is a great deal of unnecessary bureaucracy throughout the whole scheme in which any expenses involved in regard to witnesses, experts and so on must be approved by the Minister for Justice and presumably also by the Minister for Finance. One can envisage this being a very slow process, that the already slow process of the law will be rendered slower still in the case of those people who would seek advice under this scheme.
Then there is the question of the law centre. Law centres are very limited. I shall have more to say about them if time permits. For example, if the law centre decides that a person has no case there appears to be no provision for the applicant appealing that decision; if there is no case on financial grounds there appears to be no provision for the applicant appealing his case. Indeed this runs throughout all our laws as they apply to other matters. Neither is there any provision for the applicant receiving a detailed statement of the reasons for his case having been turned down. That runs through all our schemes—the social welfare schemes, in respect of, say, applicants for unemployment benefit, disability benefit, who when their appeals are refused by an appeals board generally receive a blanket statement saying they are refused. There is the same thinking running through this scheme, that an applicant has no right to know why his case did not succeed nor is he afforded any facility to appeal his case directly in the event of its being turned down at the outset.
I should like to say a few words in regard to financial eligibility for the scheme. There is the question of the resources of both spouses being taken into account. That might be considered to be a very reasonable way of handling things, particularly where the spouses are living together or, even where they are living apart, if one is being maintained by the other. But it is not stretching the imagination too far to maintain that there could be cases where both spouses might not agree, where the spouse who had the income might not be at all disposed to financing the other spouse's case. We should treat people as individuals in their own right and not suggest that because they are spouses they are somehow inextricably mixed up and have no visible individual interests.
There is provision for income for qualification for the scheme to be reassessed while in receipt of legal services or within a reasonable time thereafter, Section 5.2.8 of the Scheme of Civil Legal Aid and Advice allows for higher contributions only if the income has gone up. There seems to be no corresponding allowance in the case of one's income decreasing. The whole thing is punitive and works more or less to prevent people from getting legal aid rather than facilitating them to qualify.
Regarding payment by instalments, except in very exceptional cases this is not allowed. This again is a hard-line attitude particularly here where there is already a very rigid means test. The Pringle Committee in the case of income as opposed to capital stated that payment could be made in instalments spread over a two-year period.
The scheme suggests that the only redress open to people under it is the service of solicitors in the law centres. Eligible persons are qualified without regard to the area from which they come. That is fair enough, but it could work towards the establishment and retention of a limited number of law centres where people seeking legal aid would be forced to travel long distances to seek legal aid, if they had the capacity, financial or otherwise. While there is some very limited choice in so far as they may go to any law centre, there is another punitive provision that if they go to a law centre other than that nearest to them and the consequences are higher costs, they could themselves be liable for those costs.
There are several restrictions running right through this which are not consistent with the spirit of a free legal aid scheme. The board are allowed to establish some part-time services in addition to the law centre. I do not know what is envisaged here, but it would seem that part-time services for the provision of free legal aid would not be a satisfactory way of going about it. People providing part-time services, were they of very high calibre whose work-load was already very heavy, could be expected, without any reflection on themselves—or perhaps in danger of bringing reflection on themselves—to give minimal attention to legal aid cases.
The Minister has proposed to set up consultative committees. It is difficult to know what is the purpose of these consultative committees. The idea is a good one if they are to be given some definable function, but under this scheme the consultative committees have no function and no power. They may talk about cases but there is very little else they can do to assist in the administration of this scheme.
Regarding applicants' qualifications for inclusion under the scheme there is the objectionable provision that lawyers operating the scheme are charged with notifying the board of any change in the applicant's means or any developments which might render the applicant ineligible for legal aid. That is not consistent with trust between a lawyer and his client. Under this scheme a lawyer is placed in a position where he would have to watch his client very closely as the client relates details of the case to ensure that there is no improvement in means. The client has to watch himself while speaking to the lawyer. If a client informs a lawyer of any minor improvement in his means it is the lawyer's job to notify the board and so deprive the client of his legal aid. I agree that in a limited scheme, confined or means tested, there would have to be some control or some knowledge of the income of those qualifying, but to place the lawyer in the invidious position of having to notify the board and also of collecting the costs militates against the building up of trust and confidence between lawyer and client. Also it puts the client in a position very inferior to that of the client who has the money to pay for his own case.
I would like to deal with the means test. The figures laid down for the assessment of what is determined disposable income are those which were worked out and listed in the Pringle Report issued two years ago. The deductions in respect of dependants, travel to work, rent and so on were less than realistic even then. To suggest today that the deduction in respect of an adult dependant would be £9.50 per week and for a child dependant £4.75 per week is totally unrealistic. We talk about allowances for such persons under the social welfare code and how inadequate they are and how out of touch with what is held to be adequate and reasonable in other schemes. Even compared with the Social Welfare allowances, these allowances of £9.50 for a spouse and £2 for travel expenses to and from work do not stand up. One gallon of petrol costs almost £2 now. The allowance for hire purchase payments is £2. Hire purchase payments for people applying for aid under this scheme can be a very big part of their initial outlay. They do not have the capital to buy things and HP is part of their lives. The means test does not bear any resemblance at all to what it costs to keep dependants today. Here again is the same punitive thinking. Income tax is deducted in respect of the past year. With inflation, income tax might be expected to be higher in any year than it was in the previous year, although I hope the trend will be the other way in future. The income itself is based on what might be expected to be earned in the following year. Therefore, we have two standards here, one in respect of outgoings and one in respect of income, all geared to maximise the income which the person applying for legal aid is deemed to have.
This scheme is by no means a proper one. It denies clients applying for legal aid a choice of lawyer. It denies them the very areas of action, such as social welfare, where it might be very important for them to have a tribunal. It is not a free scheme and it is severely and unrealistically means tested. Another provision in the means test is a 25 per cent reduction per year for the value of a car which might be used in the course of the applicant's work. Every effort is made to bring the income of the person applying for legal aid up as high as possible.
The scheme is totally restrictive. It will in no way provide a scheme of aid for people who need assistance from the State on a comparable basis to schemes available to other sections of the community. It fails on all fronts. It has no basis in legislation. It will be a dispensary type scheme for the poorer sections of the community and it will discriminate against rural Ireland because there is no way in which it can be made available to people in remote areas. For all these reasons I ask the House to reject the Minister's scheme and to implement this comprehensive scheme for legal aid based on the Pringle Report.