Wednesday, 10 May 1978
Dáil Eireann Debate
That Dáil Éireann calls for the immediate implementation of the comprehensive scheme for civil legal aid and advice recommended by the Pringle Committee; and calls on the Minister for Justice as a matter of urgency to take the necessary steps to ensure (a) that the remedies and procedures of the courts are simplified and made more accessible, and (b) that a broad review of provision of legal services and access to legal education in Ireland is undertaken without delay.
“expresses its confidence in the Minister for Justice in relation to the exercise by him of his functions in regard to legal education, legal services, including legal aid in civil cases, and the accessibility of justice in the Courts.”
Mr. O'Keeffe: In the brief time available to me I want to cover a few points related to this motion. The first part relates to civil legal aid. I covered a lot of that ground yesterday. Basically I condemn the Minister and the Government for their failure to implement the provisions of the report. It is clear from the report that a comprehensive scheme is recommended. It is clear that a phasing-in scheme, or an interim scheme along the lines suggested in the Minister's statement, is not recommended.
I condemn the Government for their delay in introducing this very desirable reform. The Minister told us there has been a delay because he has been examining the report. I observe from the front page of the report that the date it was presented to the Minister was 14 December 1977—five months ago. How much more time does the  Minister want to examine the report? Not alone is the report totally detailed, but it includes a draft Bill, so the legislation was ready to roll immediately the Minister and the Government came to a decision.
This is the problem. They are unable to come to a decision in relation to this matter. Why? The Minister produced another excuse for delay. He referred to the fact that the UK system was in operation for 27 years and that there had been further developments over the years. Is this a reason for waiting another 27 years in case there may be still further developments in the UK system?
The Minister also referred to complexities. Of course it is a complex matter, but the committee spent their time in teasing out these complexities, introducing solid recommendations and a solid Bill. On that basis I demand in the interests of the people who need this service that this report be implemented immediately. The approach of the Minister and his Government is typical of their whole approach to law reform. It is clear that they have no interest whatever in law reform. I say quite deliberately that we have not had one measure from this Government since they came to power almost a year ago. I mean, of course, one fresh measure, in case the Minister trips me up on the basis of the ground rents measure which was there before this Government came into office.
Mr. O'Keeffe: There has not even been an immediate response where such was obviously necessary. We had the breathalyser situation. Last October the DPP said that we needed legislation. Are we to wait until hundreds  more people have been killed before the Government decide to stir? We have the fishery situation.
Simplified access to courts is another major measure. There are many other measures. As I said yesterday, the Minister should take away the 100 per cent increase in the cost of issuing High Court proceedings. I suggest an immediate increase in the jurisdiction of the District Court and the Circuit Court. I suggest, in addition, that there should be more judges appointed to the Circuit Court and the District Court.
Mr. O'Keeffe: We should have better court accommodation and the courts should be more adequately staffed. People there work under very severe pressure. I suggest the introduction of a small claims procedure. Certain cases involving small claims, children, family law and so on should be heard in the evening after normal working hours. These things could be considered and there would be very little expense involved.
In relation to legal services, there is need for reform. As a solicitor I have no fear in saying that there is need for real reform in that area. Apprentices being taken on are charged fees. This should be abolished. There are no funds or scholarships available for people who want to become solicitors or barristers. I believe that the limitations on people becoming solicitors should be abolished. If there is difficulty about the provision of facilities, funds should be made available to the  Law Society to extend facilities. There should be a change in emphasis in the training of law students so that they would be more aware of modern complexities in the field of social welfare and other fields. There is also considerable room for reform in the barristers' field. This Government have no interest in reform. What is needed is an outlook, a vision, which will transform and reform the system. The most important point is that what is needed to get matters under way is the immediate implementation of the recommendations of the Pringle Report, that is, the introduction of a comprehensive legal aid scheme.
Mr. Briscoe: The experience of most people is that when someone is shouting it is in order to cover up a lack of knowledge of the topic about which he has been shouting. Such people resort to compensating for this by shouting.
I am sorry to see that Deputy Barry Desmond is leaving the House because he was one of the people who gave evidence to the Pringle Committee. The report of that committee is a most interesting document. It is well worth reading and I hope that people other than lawyers will read it. It is extremely easy for non-legal people like myself to read. It appears that there is among certain members of the legal profession a kind of arrogance and a belief that they are the only people who know the truth of the law.
I wish to make some comments in relation to the Pringle Report. The committee first met on 10 May 1974. They held 89 meetings during three-and-a-half years of arduous deliberations and they met interested bodies from all over the world, from the UK, from countries in Europe, from different provinces in Canada and different states within the USA. A very thorough job was carried out and they produced the best possible report.
That Dáil Éireann calls for the immediate implementation of the comprehensive scheme for civil legal aid and advice recommended by the Pringle Committee; and calls on the  Minister for Justice as a matter of urgency to take the necessary steps to ensure (a) that the remedies and procedures of the courts are simplified and made more accessible, and (b) that a broad review of provision of legal services and access to legal education in Ireland is undertaken without delay.
The Minister was accused by Deputy O'Keeffe of having rejected the Pringle Report. This is absolutely untrue. Deputy O'Keeffe said: “The Minister's statement can only be construed as a total rejection of the Pringle Report.” The Minister said: “I am examining the recently published report of the Committee on Civil Legal Aid and Advice and I hope to submit proposals to the Government on the matter in the near future.” I do not know how anyone can say that is a rejection of the report.
Mr. Briscoe: Deputy O'Keeffe suggested that the task of implementing the Pringle recommendations was simple in view of the fact that they have already a draft Bill contained in the report to the Minister. The draft Bill referred to by Deputy O'Keeffe is not actually a draft Bill. It is headings for a draft Bill. The difference, if I may explain to the learned solicitor, is that it is the general scheme of the Bill—something quite different. Any person involved in the reform of law, particularly a spokesman on law reform in Dáil Éireann, knows that the general scheme of a Bill is a document drawn up at a particularly early stage in the preparation of legislation and is not comparable to a draft Bill. The latter has been through the processes  of being drafted by the parliamentary draftsmen and this has not. There are the consultations which go on with the parliamentary draftsmen, as the former Tánaiste would know.
Mr. Briscoe: That may well be. He would agree that in no way could this be interpreted as a draft Bill. He nods his agreement on that. That is for Deputy O'Keeffe's information. The Deputy in a parliamentary question a week ago referred to the Law Reform Commission and asked the Minister to introduce a Bill to give effect to the recommendations in the commission's first report. I have here that report and it states as follows:
Mr. Briscoe: As the Minister has rightly pointed out, it is ultimately the responsibility of the Government to legislate. The previous Government set up the committee and they have reported to the present Minister. It is up to him and his advisers to study carefully this very complex matter. It could be very costly for the taxpayer. Huge amounts of money could be wasted if the wrong kind of law reform or if piecemeal legislation not in the best interests of people were introduced.
The Committee recommends that if there is to be an interim Scheme  it should be modelled on the comprehensive Scheme but on a more limited scale. The Board should be established, Community Law Centres and Legal Advice Centres should be set up at the earliest possible date and the same criteria for granting legal aid and advice should apply.
(d) The legal advice system which is proposed in paragraph 4.4.3. of the Report might be deferred pending the introduction of a comprehensive Scheme, but some alternative legal advice scheme should be introduced.
——it would be desirable and possible to develop as a matter of urgency a system of legal advice centres and legal aid in certain categories of cases which the Committee considered merited immediate consideration.
Mr. Briscoe: This is a large publication; it has 290 pages and one could pick all kinds of items out of it. A wide range of submissions have been received by the committee. There was a minority report by one of the members, from the Department of Finance, Mr. C.K. McGrath. He was worried about the speed with which certain items might be implemented which might not prove possible.
I should like to make the following suggestion to the Minister. Throughout the country community information offices have been set up under the auspices of the National Social Services Council. Some of these centres would be ideally suited for such work to be carried out in them and I think Deputy O'Keeffe agrees with me on this. These information offices are doing tremendous work. One of them in my constituency has a member of the staff of the Department of Social Welfare working in it and people no longer have to go into town to the Department for information. The Minister might consider using the  community information offices rather than setting up special legal advice centres.
For many young lawyers when they qualify there is the problem of getting briefs. It takes time to work up a practice. In drafting legislation to cover a wide range one of the imponderables is the cost. The committee stated that they estimate that the overall cost of the comprehensive scheme would be in the order of £2 million per annum and £1 million per annum for the interim scheme. These matters must be borne in mind because ultimately the taxpayer will have to pay. We must be careful to differentiate between advice and information. Many people require information while others need advice. These factors must be kept in mind.
I am sure that if all the groups who made submissions were brought together they would not come to unanimous agreement as to what ultimately should take place. The Minister for Justice will have to exercise the judgment of Solomon to come up eventually with what is in the best interests of all. We know that there is great need in family law cases. We have always favoured the setting up of family courts. Deputy O'Keeffe referred to the Fianna Fáil manifesto. We stated in that document that there was a need to update law reform. There is nothing dividing us on this issue. It is a question of priorities and how quickly certain things should be done.
1.2.1. We were not required, under our terms of reference, to consider whether a comprehensive scheme of legal aid and advice in civil matters was necessary. The then Minister for Justice, when he addressed us immediately before our first meeting, said that the need for such a scheme was already well recognised. The evidence we have received indicates that this is so. Our approach, therefore, was to establish in relation to a legal aid and advice scheme—
There again are the difficulties we have been running into. Who ultimately has the decision to make? It is the Minister for Justice on the best advice available to him who has to make these decisions. In paragraph 1.3.1. on page 23 they say:
First of all, our terms of references are for us “to advise on the introduction” of a comprehensive scheme of legal aid and advice. We interpret this as making it incumbent on us to outline a comprehensive scheme but leaving us free to recommend the phasing of its introduction.
Again they emphasise the phasing of its introduction. They do not call for the whole lot to be implemented. That would go counter to the paragraph which Deputy O'Keeffe earlier referred to. This will take time.
Mr. Briscoe: I am interpreting this in the way I think a lot of people will. I am quite sure that when Deputy Horgan is speaking he will interpret it quite differently from the way in which Deputy O'Keeffe interpreted some of the sections. In paragraph 1.3.4. on page 24 they say:
“Hidden” need is not an easy term to define precisely. We take it  to refer to the situation where a person, though having a legal problem, does not for one reason or another avail himself of legal assistance. Some of the contributory factors appear to be poverty, ignorance of the fact that there is a legal remedy or reluctance to approach a solicitor. The concept of hidden need is now a widely accepted one in the legal aid and advice context. In England and the United States, law centres have proved most effective in uncovering and meeting hidden need. The experience of Free Legal Advice Centres, here, strongly suggests that there is need in this country also which is hidden.
The point at issue here is whether a comprehensive legal aid and advice scheme should concern itself with the process whereby hidden need becomes known for articulated need. Should the scheme be concerned, for example, with dissemination of information on aspects of the law which are likely to concern those in need and with research aimed at establishing the precise nature and extent of hidden need? Our view is that it should. Equality of access to the law is hindered not only by lack of money but also by lack of information. Financial support for litigation, on its own, certainly does not guarantee equality.
It is an excellent recommendation that people be educated to their legal rights. Our population should not be educated to go berserk, as they have in one country, where a legal action is taken every time a person crosses the street the wrong way. People are subjected to legal action for such trivial matters every day of the week in that country.
I am concerned about another matter in relation to family law. I want to refer to the case where two lawyers represent respectively the husband and wife who are on the verge of breaking up. The wife's lawyer may advise that  he can have an order issued by the court to throw her husband out of the house and not let him into the house for three months because he struck her. That marriage might possibly have been saved if, instead of the two lawyers competing with each other and one telling the wife she is entitled to this, that and the other, a judge in a family court setting got everybody together to see if a reconciliation could be effected. This is happening in certain cases. Once the man has been put out of the house for three months there is no way that marriage will ever come together again. Sometimes people are encouraged by young inexperienced social workers to proceed on those lines. It is a very ticklish matter when we are dealing with the everyday lives of people.
We do, on the other hand, recognise that “need” like “demand” could be virtually endless. The education of the public as to their legal rights and remedies is clearly within the ambit of the type of scheme we are here discussing, but we do not suggest that it would be reasonable, under a comprehensive scheme, to divert resources to the pursuit of hidden need to such an extent that known needs could no longer be adequately catered for.
One feature of the “activist” approach is that the pursuit of legal remedies would be encouraged. However, undue encouragement to pursue legal remedies is not always in the interests of those who have legal difficulties.
Those are the things which will give the Minister a lot to think about. The  Pringle Committee took three-and-ahalf years to report. This was very quick to bring out a report like this but we want the Minister to legislate very quickly without taking into consideration all the pros and cons of the matter. What the Minister legislates for will directly affect the lives of future generations of our people. This legislation comes into everybody's home and it is very important that those things are borne in mind.
The fact that views differ as to the objectives of a comprehensive legal aid and advice scheme emphasises the need for flexibility and pragmatism in developing it. There is no such thing as a readymade blueprint for the ideal service. Consequently, the basic structure and the legislation bringing it into being have to be such that they will allow for the speedy implementation of any changes which experience may show to be necessary.
In the light of experience various changes can be brought about. We have to proceed here with a certain amount of caution. A lawyer once said to me many years ago “Every time you legislate you erode the freedom of some person. You can bring legislation up to date, you can get rid of old legislation and you can modernise legislation; but when you introduce new legislation you are eroding freedom to a certain extent.” It is very important that we encourage society to be responsible and not lean on the law all the time for small things. I am not including in that the basics on which we are unanimously agreed in the House—the needs which we feel exists.
With regard to the person who seeks advice on a matter which is entirely within the criminal field, the Minister agreed that it would be undesirable if any person in need of  such advice were turned away from a legal advice centre just because his or her problem was primarily or entirely in the criminal field. The Minister stated that legal advice centres would be of little use if they were not staffed by persons with both common sense and a fair modicum of sympathy for people in need and that it would be unthinkable that, just because his or her problem was in the criminal area, they would not give to an enquirer in need of help, and perhaps at a loss as to where he should turn, enough advice to guide him.
This aspect of the legal aid and advice service could be developed as the service itself grows but we cannot, at this stage, go beyond a general recommendation that the Legal Aid Board should, from the beginning, make provision for the analysis of the results of its work,  with a view to making appropriate recommendations to such bodies or persons as the Board may think fit.
Mr. Briscoe: Law reform is an on-going process. It is on-going in the light of experience to a large extent. The provision of money will not overnight change our society and it is very important that that be realised.
I should like to pay tribute to those people and all the various bodies who gave of their time to make submissions to the Pringle Committee and while doing so not only to compliment FLAC for the work they have been doing but to commend them also for the idealistic way in which they have performed their work. I should like to pay tribute also to many individual solicitors whom I know personally who have taken on cases free of charge, solicitors who are not Members of this House who have taken on such cases, and there are many of them. A large debt of gratitude is owed to them, and many of them are on in years.
I do not think it will take all that length of time before this essential legislation is introduced. Naturally it must go before the Government, be discussed and very carefully thought out. There are many recommendations and a lot of food for thought. We have waited three-and-a-half-years for this report. Even if we have to wait another year it will not be that long in my view. I do not know how long it will be before the Minister introduces this legislation but I know he will not do so until he is absolutely satisfied that it is right for our people.
It is also fair to say, having complimented the legal profession, that some of them have a vested interest also in State moneys going to pay them large amounts. Very shortly I will be putting a question to the Minister to ask the kind of fees paid over the last year  or so to certain solicitors. I can think of one man who, in the past year, is reputed to have earned over £50,000, which is not bad money. The legal profession also have a vested interest in free legal aid and, while we appreciate their contribution, that must be said of them in many instances.
Mr. Horgan: I happen to believe that the law in general is not as neutral as it is widely supposed to be and as it is widely touted to be especially by lawyers. The philosopher and author, Anatole France, once put it very neatly when he pointed out with a typically Gallic sense of irony that the law is alike to rich and poor where it forbids both rich and poor alike to sleep under arches. That is a classic example of the way in which an apparently neutral piece of law in fact operates in a discriminatory way because, of course, we all know which of the rich and which of the poor are more likely to end up sleeping under arches along the Seine at night. This motion is about something along these lines. It does not perhaps go into this fundamental question of the neutrality or otherwise of the whole corpus of law but it deals very satisfactorily with the related question of the administration of and access to legal advice and legal remedies under our existing situation. It does so specifically by mentioning this Pringle Report which has been mentioned and I believe praised on both sides of the House and goes on indeed—and this point should not be lost sight of—to widen the scope of the debate from that encompassed purely by the Pringle Committee's Report, which is the report of a Committee on Civil Legal Aid and Advice, to urge that a broad review of the provision of legal services and access to legal education in Ireland is undertaken without delay.
Several speakers have referred already to delay. Naturally there will be different views on each side of the House as to what constitutes an acceptable delay. I will refer to one point only in this, to one deadline which hangs over the Minister and it is not the deadline of a vote in this House. This report has been on the  Minister's desk since December last, some five months ago. There is at present going through the European judicial system, which to some extent overrides our own, the case of a woman from the same constituency I believe as the Taoiseach who is complaining, with what seems to me to be a great deal of justification, about the lack of access that she had in her case to legal remedies for the situation in which she found herself. It is very probable that this case will end up before too long in the Court of Human Rights. If that happens the Government will be in the extremely embarrassing situation of being proceeded against in the Court of Human Rights on the basis of Mrs. Airey's complaint while, at the same time, having the remedy to that complaint gathering dust on one of the very many shelves in the Department of Justice.
That is a deadline the Minister cannot ignore. More than that, the longer he leaves this report and the closer that any implementation of it, however partial, is to a judgment, a decision or a hearing in this particular case, the more he will find himself accused not of doing this thing because of its own internal validity but because he was being pressured into it by Europe. I am sure the Minister would prefer to do something because it needed to be done than simply to be seen to be pushed, pulled or dragged unwillingly into it by the legal bureaucrats in Brussels and in the European judicial system. I am not confident or hopeful that the Minister or the Government will act with any expedition on this report.
Mr. Horgan: With all due respect to the Deputy, I would suggest that Ministers, and not only Ministers of Fianna Fáil administrations, have been known to make commitments like that and the phrase very soon has been discovered to have an elasticity that the framers of the Oxford Dictionary rarely imagined it to have. I do not  doubt the Minister's intention and, indeed, his goodwill. But it is one thing to submit proposals to a Government and another thing to force decisions out of perhaps an unwilling Cabinet and another thing again to get decisions into the form of a Bill, on to the floor of this House, voted on, passed and implemented. If we had any doubt about the degree of delay we may expect to afflict a consideration of this report I think we should look with a keen sense of alarm at the speech made this afternoon by the Taoiseach establishing priorities for Government spending.
The Taoiseach made it very clear that as far as he was concerned the priority would be jobs and he hinted very categorically, letting the cat out of the bag with a yowl such as has never been in the last 12 months, that anything which was not in the area of direct job creation was unlikely to feature very high up on the Government list of priorities. To us, on this side, that kind of warning—and it was a warning—spells death, and a horrible and very quick death, for social spending. What we are looking for here is social spending, tiny in comparison with total Government spending in the industrial and job creation area, but social spending nonetheless; and we are now served unambiguous notice that social spending under this Government, only a year in office, is already at risk. There are relatively few jobs in legal aid. Perhaps if the legal system were better organised there might be more. As against that, the rights, the aspirations, the fears of countless numbers of people are involved and one cannot put a price on those.
Rather than go through the recommendations of the report, particularly the positive recommendations which have been urged on the Minister at some length, I want to warn the Minister against one particular section of the report because it is a section which gives him the excuse for doing nothing. It is not, properly speaking, a section of the report. It is a minority report written and signed by Mr. C.K. McGrath. It constitutes a classic argument for doing nothing. On page 188  this minority report comments on the conclusions and recommendations of the majority report. It says:
(2) most likely, the beneficiaries of public expenditure on civil legal aid and advice would not be the poor and the deprived but the legal profession and persons reasonably able to pay for essential legal services from their own resources;
(4) once introduced, a civil legal aid scheme could not be contained without creating widespread dissatisfaction and could only lead eventually to costly State involvement in the private legal sector.
These words can be translated into one simple phrase and, with all due respect to the person concerned—I respect his opinions—that phrase is: “Nobody should ever do anything for the first time”. More than that, there is at the core of these reservations, which will be the core of opposition to the report and the core of attempts to water it down and delay it, a fundamental contradiction which, I believe, the author of this minority report has not adequately faced up to. It is particularly well expressed in No. (4): “once introduced, a civil legal aid scheme could not be contained without creating widespread dissatisfaction and could only lead eventually to costly State involvement in the private legal sector”. That is completely contrary to No. (1): “the community has indicated neither a need nor a desire to provide public funds to finance private actions in civil legal matters”. Either of those statements can be true, but both cannot be. If it is true that the introduction of a free civil legal aid scheme will be widely availed of and will be expensive, then it is not true  that the community do not feel or perceive the need for such a scheme. It is far more likely to be true that, once such a scheme is introduced, the community will avail of it because people will become aware, perhaps for the first time, of many of their actual and legal rights.
Fundamental to this whole argument is the question of perception. People do not perceive some rights are legal and, even if they perceived them, they have no idea how to go about claiming them. For most people who never go to law and never think of any reason for going to law the legal profession and the lush pastures that profession inhabits are less familiar to them than the territory depicted for them in “Star Wars”. It is a country of foreigners whose language and customs they do not understand, and are not encouraged to understand. There are many reasons for this. One of the main reasons is the growth over the years of the legal profession itself and the way in which it has developed. It is, I think, true to say that the legal profession has focussed on two main areas. It has focussed on areas involving substantial amounts of money and on areas involving civil rights. It has always been quicker to follow money than it has been to establish rights for the very simple reason that, until comparatively recently, there was absolutely no access at all to the legal profession unless one had the money to pay.
I remember a conversation with a distinguised jurist, Mr. Seán McBride, in which he pointed out how much could be learned from an analysis of the type of cases most commonly in the court over the past 50 or 60 years. Up to the end of the last century by far the most common cause of action was an action for breach of the electoral laws. Half a century later the most common case was a running down action. There are social reasons for these trends and developments and, because the legal profession has been one entirely in the private sector, the question of using that system to establish people's rights and giving people access to that system has often taken a very poor second place indeed.
 I further believe that the trend in the provision of legal services to which I have already referred has been reinforced and has perpetuated itself in the system of legal education which is referred to specifically in this motion. I should like to discuss legal education under two headings: access to it and the content of it.
I found it extraordinary some years ago, when I attended a meeting of the Young Solicitors' Society, to hear the then president of that society standing up and averring that there were no barriers to entry to the legal profession. To their credit there were some young solicitors who disagreed vociferously with that. It cannot be entirely an accident that when we see in the papers the names and addresses of those who were called to the Bar and those who were given solicitors' parchments, they almost invariably reflect the better off areas of the larger conurbations. It is statistically and socially impossible that that should be an accident. Of course it is not an accident, because of the way the education system in general works and within the education system in general the legal education system in particular. It is not impossible to see in the barriers that are erected, even to many middle class children who may want access to the legal profession, the desire in the legal profession, which is common to all professions, to protect first and foremost their own level of income and on occasion to disguise that understandable self-interest behind the allegation that what they are really protecting are professional standards.
Secondly, the content of legal education in no way reflects the real needs of the majority of the population. I can speak of this with some personal experience because I was a law student once. I was a fellow member of the law society in University College Cork with Deputy O'Keeffe, and a solicitor's apprentice for many years—unsuccessfully in the end because I went to journalism instead—in solicitors' offices in Cork and Dublin. When I think back on the law I studied then—and it is not that different from the law being studied by many of our solicitors' apprentices now—and compare the  training I was getting then to the work I am doing now as a public representative, it seems that the separation in time is also a separation almost of philosophy, in culture and in every other way that matters.
I could give the House a simple example. Every public representative will know that there are very large numbers of cases of legal or para-legal nature which we deal with in our advice clinics in relation, above all, to social welfare law and to the law of employer and employee. How much of this social welfare law, of trade union law, of employment rights law, of women's rights law, finds a place, much less an honoured place, in the curricula of our legal educational institutions today? If it does not, and I suspect it does not, it is because there is largely no money in it and because solicitors and barristers have to earn their bread like everybody else.
This is why we need a free legal aid scheme. It is better that solicitors and barristers should be earning their bread doing and pursuing work to establish the basic human and legal rights of the vast majority of the population than that they should be earning disproportionately large sums on behalf of a tiny section of our population.
Another sidelight on access to free legal aid can be seen if we examine the structure of the various Departments I am talking about and compare them with the real needs of the people. Many of the legal problems with which we find ourselves dealing cannot be dealt with by the public servants in the Department of Social Welfare, the Department of Health or the Department of Labour for the very good and simple reason that these public servants by and large shut up shop at 5 or 5.30 in the evening.
One thing you will note about public advice centres, both those operated by the Department of Social Welfare, which are good but few in number, and those operated by public representatives is that they take place at the times of the day and night when, and at the only time, ordinary working people are free to attend them. That is why we have no nights and no weekends. I do not object to doing that because  I think it is a fundamental part of our role as public representatives, but it is an example of the failure of a system which exists to meet the needs it purports to meet.
It stands to reason that there is no future in establishing a civil legal aid system if we are simply going to pump more State money into a system which is already discriminatory and characterised by inequalities of access, by irrelevancies of curricula and all sorts of other anomalies. At the same time, we must reform the profession itself, access to it, and education to it. As our motion says, we urge that “a broad review of provision of legal services and access to legal education in Ireland is undertaken without delay.” When we look at the Minister's amendment we find that we are asked to express our confidence in him “in relation to the exercise by him of his functions in regard to legal education, legal services....” The Minister for Justice has precious little to do with legal education. I know the Minister for Education has no function with regard to legal education, because I put down a question to him and it was disallowed by the Ceann Comhairle. We are asked to express our confidence in the Minister's ability to do something about something over which he has no control.
This is why our motion calls for an urgent inquiry into these matters. The Minister could have accepted at least this part of our motion because it does not depend on the implementation of anything in the Pringle Report. It stands by itself as a valid expression of a need for our legal system and our legal education. If we had shown any willingness to intervene at long last and investigate the adequacy of our legal education, the out of date division between barristers and solicitors which has been attacked, and all sorts of other anomalies, I would have been satisfied. I would like to see the Minister take on the legal profession, if necessary. I would also like to see more evidence of this Government, or any Government, being more willing to take on the professions.
George Bernard Shaw, a great Irishman  and socialist, once described all professions as a conspiracy against the laity. Thank goodness, that is not always true. But what is true of our motion is that we see a need in the professional and service area, at least as much as we have always traditionally done in the industrial and democratic area, to allow the consumers of these services to begin to indicate what their real needs are. As long as we allow the provision of these services to be dictated only by the people who produce them then it is as clear as anything can be that the gap between the provision and the need will continue to be wide and to grow to the point where ordinary innocent people in our society will suffer needlessly.
Mr. Enright: I compliment Deputy Mrs. Desmond on placing this motion before the House. The Pringle Committee was appointed on 10 June 1974 by the then Minister for Justice, now Senator Cooney, and reported on 14 December of last year. His Honour Mr. Justice Finlay, the President of the High Court, on page 36 of this report said:
With the increasing complexity of law and litigation the inequality arising from the absence of representation to one party in an action where his opponent has legal advice and representation has now reached alarming proportions. This is particularly true where the reason for the absence of legal representation is poverty, since persons in low income groups are, in general, persons with an inadequate capacity to communicate.... Whilst therefore, legal aid in civil cases has long probably been a desirable social objective it has now, in my opinion, become a necessity, if the courts are to function justly and with the public appearance of, and reputation for, justice....
 These two points emphasise the necessity for a comprehensive free civil legal aid system. This is a matter of great public concern. As the Leas-Cheann Comhairle is probably aware, legal services have been used on occasions by people with no means. Solicitors and barristers have on occasions brought cases without payment or hope of compensation because they felt that the cases were just. These cases were brought to court because of the generosity and kindness of the barristers and solicitors involved but not as of right. People should not be put in a situation where they have to depend on kindness, they should have the right. People from different walks of life who have not had the benefit of a full education are not in a position to speak for themselves in court. They appear in court and they cannot speak for themselves. They are unable at times to comprehend whether or not they have a case. When they go to a solicitor's office they feel that all the proceedings are above them and they are far removed from the solicitor's approach. They also feel that to bring cases is far too costly and they are generally reluctant to go to court. Because of all this it is a sad fact of life that many poor people are deprived of their basic human rights and their constitutional rights in relation to justice.
It is a sad reflection on all of us as legislators if we do not make every effort to remedy that situation. There are situations where tenants suffer seriously because landlords being aware of their rights and knowing that the tenant is not aware of his rights, manipulate and generally extort benefits from these people. There are cases where large companies because of their strength and capacity are able to enforce their rights and extend the law to its fullest and at times go beyond it to deprive people of their rights. In consumer affairs there are situations where people are deprived of their rights. A report was published recently dealing with the Department of Social Welfare stating that people were not aware of their rights as regards social welfare and that some of the people discharging duties in the Department of Social Welfare were not  aware of the rights of the people they were dealing with. There are countless examples where successful cases could be brought against the Department of Social Welfare. I am giving these instances to emphasise the importance of these rights. There are many areas, family law being very important, where it is essential that legal advice be given to the people. Legal advice can be given by written and oral submissions from solicitors and barristers and in legal aid, the full case is brought to court and a person is represented by a solicitor and barrister.
The Minister mentioned that the English system of civil legal aid was having a lot of difficulties. There are difficulties but they have at least tackled the problem and have benefited a lot of deserving people. No matter when the scheme is brought in here there will be difficulties but no matter what the difficulties are in implementing it and in administering it we should not be deterred from making an effort to introduce legislation which we can improve as we go along.
In relation to legal costs it is essential that our existing court framework is investigated. The way in which our courts operate is largely responsible for the costings, and the Minister referred to this in his amendment. In the district courts in some of our bigger towns such as Limerick, Cork, Athlone Portlaoise and so on, there are situations where there are very long lists, and it is quite common for the courts to have to adjourn at five o'clock in the evening and people who have been summoned to appear at 11 o'clock that morning are obliged to return the following fortnight or month to have their cases heard. That puts a nervous strain on people, most of whom are nervous of appearing in court, and it also imposes a financial strain.
Similarily, I regard as highly unsatisfactory our present arrangements in regard to the circuit courts and the sessions that are held around the country. It would be enlightening to visit any country town when a session is being held and see the situation on a Monday or Tuesday morning. The place is packed with jurors, up to 50 or 60 of them from different parts of  the county for the hearing of criminal cases. You have witnesses and litigants for civil cases. You have solicitors, counsel, doctors, engineers and so on awaiting the hearing of their cases. The situation is such that at times— and I can prove this; I can show a list of these cases—often 50-100 cases are all timed for 11 a.m. on a Monday or Tuesday morning. That is not good enough because it calls into question the whole legal system and brings it into disrepute. This is wrong and those administering the system should be questioned. A review is absolutely essential; if it is not carried out the whole system will be clogged up and brought to a halt. The manner in which the lists are produced at present is a scandal. There must be a review.
What I say might not be popular but somebody must say it; somebody must see that it stops and that the procedure is rectified. In the case of the High Court a number of cases are set down in the list for hearing and people troop up from all over the country, the west, the south and the midlands. Next thing, the case before theirs is not settled and goes forward for hearing and all those people travel back home again at great expense and these may be people who are suffering as a result of accidents, people who have been injured and so on. They return home and the worry and strain is still with them. In a few months' time they must come back up again to have their cases heard. That is not good enough. It causes expense, trouble and difficulty for litigants. That position must be rectified and the sooner the better. The work should begin tomorrow. This is essential.
Mr. Enright: I am sorry that I have not an opportunity of going on much longer because this is a very important subject. As I said at Question Time the other day, we have ten High Court judges but only eight available courtrooms so that in Ireland in 1978 there is a situation in which a judge who wants to hear cases and who is available has no courtroom in which to hear them. When a man is paid £14,221  and has no place in which to do his work it calls for investigation. It is a serious situation. It creates expense and difficulty and is unsatisfactory. It is wrong. More judges must be provided and there must be an adequate number of courtrooms. A complete review of our whole legal system and its administration is essential and in addition there must be a comprehensive legal aid system introduced immediately. Unless that is done we are depriving people of their natural and constitutional rights and continuing a situation where might is right and where wealth is all-powerful and where a poor man has little chance against a strong man.
Mrs. Desmond: In tabling this motion and initiating the very useful debate we have had I had hoped to gain an assurance that the commitment to social justice which the present Government have was adequate to provide a sufficient response to calls repeatedly made in the recent past for change and improvement in the legal system and provision of legal services generally. I have reason, as would anybody listening to this debate and particularly to the Minister, to believe that this may not be so. Our fears were first awakened, as I said in my opening remarks, by the reference in the Fianna Fáil manifesto to “a first step” in the provision of legal aid, a first step which indicated that legal aid would be confined to particular cases. The debate has proceeded since and one may say has culminated in the publication of the Pringle Report. It was disconcerting to find in a Seanad debate some two months after the publication of this report the Minister stating that he would be dealing with the question of legal aid for particular types of people, including family law, as an interim measure. It should not be necessary to repeat that all aspects of family are of vital importance and we cannot conceive of family law as enacted by the previous Government being effective without free legal aid. That case was cogently made by all speakers on each side of the House on that occasion. There is no doubt about that.
The case has been made forcefully also in this debate and in the Pringle  Report which has been referred to so often and so effectively in this debate. The Minister dealt in the Seanad debate, as he did last evening, with the complexity of introducing a comprehensive scheme or, indeed, any scheme. The complexities which he listed such as the assessment of applications, the award of costs and damages, the question of means tests—all these are just as relevant to a comprehensive scheme as to an interim scheme and vice versa. It is no argument for postponing the implementation of a comprehensive scheme.
All these things are considered in the report itself and what remains to be done is to take a simple political decision to implement a comprehensive scheme or an interim scheme. The Minister has given us neither. He has said that he is considering the report and has indicated that he will be coming up with something far short of a full measure. In supporting his case he quoted very selectively from the report, as also did Deputy Briscoe in his contribution. It appears from the quotations given by both of them and from their obsession with quotations to back up the case for an interim scheme, that this, in fact, is what is already decided on but we have not been told when even this interim scheme will be introduced. There is no commitment to a deadline or even an approximate deadline. The only reference in this regard made by the Minister was that the report published in England preceded the implementation of a scheme by three years. I hope this does not indicate that he envisages three years elapsing between the publication of this report and the implementation of a free legal aid scheme.
He spoke of a detailed consideration of the report and definitely that is merited. He has now had the report for five months and he had the human resources necessary to come to a decision within that period. I have studied the report very carefully and the recommendations are very clearly in favour of a full, comprehensive scheme of free legal aid. The references made to an interim scheme appear only to have been made because they were asked in their terms of reference to  consider also an interim scheme. In their terms of reference as stated in the report at paragraph 1.2. they say:
We were not required, under our terms of reference, to consider whether a comprehensive scheme of legal aid and advice in civil matters was necessary. The then Minister for Justice, when he addressed us immediately before our first meeting, said that the need for such a scheme was already well recognised. The evidence we have received indicates that this is so. Our approach, therefore, was to establish in relation to a legal aid and advice scheme....
Throughout the report there is the recommendation that all types of legal problems should be covered. One would have to quote very selectively indeed to prove otherwise, as the Minister and Deputy Briscoe tried to do. The committee also recommended that:
Under a comprehensive legal aid scheme legal aid should be available to eligible persons in respect of all types of legal proceedings. We do not consider that the phasing in of a legal aid scheme by reference to categories of cases is desirable but it would be possible to do so.
The report went on to list the priorities. The report states the view of the committee if there had to be phasing, but the committee were not in favour of it. They recommended that if there had to be phasing it should be carried out to a definite timetable with a view to the development of a comprehensive scheme at the earliest possible date. Why does the Minister not tell the House where he intends to start? He should commit himself to a deadline  by which he hopes to implement a full comprehensive scheme of legal aid and advice.
The report went on to recommend that the Legal Aid Board should be established, that the same criteria for assessment of cases should apply, that a system of law centres and legal advice centre should be developed at the earliest possible date. They regarded those as indispensable and urgent. All the structures for the implementation of a full comprehensive scheme is recommended strongly by the committee. In so far as they talked of an interim scheme they say that such a scheme might be confined to a smaller section of the population, but they were not in favour of that.
If it is considered necessary to introduce an interim scheme of legal aid and advice, pending the introduction of a fully comprehensive Scheme, then the interim Scheme should be on the general lines proposed on this Part of the Report. In particular it should provide for the establishment of Legal Advice Centres and Community Law Centres as a matter of urgency....
The report emphasised clearly the need to publish any scheme of legal aid that might be introduced. I agree with that recommendation because, as the committee maintained, experience in other countries had shown that, where legal advice and legal aid schemes were in operation, they had been in existence for many years before a high proportion of people living in poor circumstances—those for whom the schemes was introduced— became aware of their existence. It is important that the fullest publicity is given to such a scheme when it is introduced. Deputy Horgan referred to the lack of response from some areas  to submissions in the report but I suggested that it is because of the irrelevance of the law for so many sections of our people. They do not see this as pertaining to them at all. That is the case. We want an education process as far as the law is concerned and we want equal access to the law for all sections of the community. It is to hasten that that we have tabled this motion.
In the past the poor have been deterred from seeking the services of solicitors through lack of knowledge. Many sections of the community have what amounts to a superstition of the law. We have all heard people say that they would like to keep as far away from the law as possible. The law should serve people in a better way. For that reason the scheme must be reviewed and the law must be more accessible to our people. We must develop a broader view generally of legal services. The first barrier to remove is the financial one, and that can be removed by the implementation of a full comprehensive scheme of legal aid. It will not be removed totally by a partial scheme. It appears to be the Minister's intention to introduce a partial scheme. For instance, a partial scheme that will apply only to family law will be dealing with the tip of the iceberg and the plethora of problems of a legal nature which could lead to their manifestation in family law cases would not be dealt with. There is no way we could have a situation obtaining where some cases in which people may seek a legal remedy would be dealt with under the free legal aid scheme and others left to be dealt with by the voluntary system of paying as at present. Such a situation would be ridiculous.
I know the removal of the financial barrier would not remove all the barriers, but each barrier must be dealt with separately. A start will have to be made in the financial area. There should be a broad review of the legal services which, I suggest, should take the form of a commission. A Royal Review Commission is at present operating in England and a separate commission operating in Scotland, but no move has been made here  to undertake any review of the whole question of the revision of our legal services. We have a structure which is compartmentalised into barristers and solicitors and this exists more for the legal profession than for the public. It is heartening to find members of the legal profession admitting that and leading the call for a change in the structure of their own profession. It would serve their profession good to have that general view. There are long delays in providing services and it is not, in the main, necessarily a good  service for the public. There are constant complaints and sometimes mistrust. I appeal to the Minister to reconsider his decision. We cannot accept his amendment in view of his contribution. We ask the House to accept this motion because of the great need there is for a review of the legal services here and making the law relevant for the least well off sections of our community.
Burke, Raphael P.
de Valera, Síle.
de Valera, Vivion.
Fitzpatrick, Tom (Dublin South-central).
Fitzsimons, James N.
Fox, Christopher J.
Haughey, Charles J.
Lalor, Patrick J.
O'Connor, Timothy C.
Wilson, John P.
Woods, Michael J.
Conlan, John F. Horgan, John.
Cosgrave, Michael J.
Deasy, Martin A.
Donnellan, John F.
Enright, Thomas W.
Fitzpatrick, Tom (Cavan-Monaghan).
Flanagan, Oliver J.
Harte, Patrick. D. O'Donnell, Tom.
Amendment declared carried.
Motion, as amended, agreed to.
|Last Updated: 14/09/2010 15:11:31||Page of 45|