The Gazette 1974

affirmed in The Zamora —(1916) 2 A.C., when the Privy Council held that an Order in Council violating the rules of international Law was not binding upon a Prize Court sitting in England. Professor Cheshire deserves the strong criticism heaped upon him for being a pragmatist. With regard to natural justice, there are some extraordinary English decisions. For instance, in Jacohson v. Fraihon—{ 1928) 138 T.L.R., the Court of Appeal held that a biased French judgment could not be said to be contrary to natural justice since French procedure had been strictly observed. In Igra v. Igra— (1951) P the Court refused to invalidate a German decree of divorce where the proceedings were tainted by racial bias. An extreme example where natural jus- tice was ignored is Arlidge's case—(1915) A.C. On the other hand, in General Medical Council v. Spackman— (1945) A.C. the House of Lords held that the Medical Council must give a doctor an opportunity to state his case, and to exculpate himself. In Lee v. Showmens Guild— (1952) 2 Q.B., Denning L.J. laid down the principles that the tribunal must observe the principles of Natural Justice, and that such tribunal may not

oust the jurisdiction of the Courts. Lord Denning who gave a famous dissenting judgment in Breen v. Amal- gamated Engineering Union —(1971) 2 W.L.R., i' 1 which he rightly held that a decision of a union district committee not to re-appoint a shop steward on the ground of bias was inexcusable. The Minister for Agri- culture was soundly rebuked by the House of Lords for not observing the rules of Natural Justice in Pad- field's case—(1968) A.C. and so should the trade unions. In discussing the Wagon Mound principle of foreseeability in torts, the author rightly wonders whether the principle could be applied to the Torre Canyon disaster in 1967, or to the more recent oil spillage in Bantry Bay. It will be seen that the learned author in his erudite volume has covered many interesting legal problems- But this reviewer condemns one serious flaw, namely, that the .reference to a case is not contained on the same page as the case, but in separate notes at the end of the volume. Nevertheless this flaw can be overlooked if the reader concentrates on the interesting and read- able text.

DAIL EIREANN—MOTION ON FREE LEGAL AID STATEMENT BY MINISTER 5 NOVEMBER 1974 Minister for Justice (Mr. Cooney):

fees were an improvement on the fees I had been getting for similar type of work before, which are very often nil or nominal because the type of litigant in much criminal work in the District Court is not in a position to pay fees—petty larcenies and the like. I found this system a great boon. Unfortunately—and I have to say this against my own profession—there was a rather superior approach to it, that this was a charity law, and that if solicitors came into it at all they came into it very grudgingly. There was not the co-operation ni the scheme from the legal profession that should have been forthcoming. That is my opinion as one who practised law up to 18 months ago. There is no doubt that, having regard to the amount of time criminal work demands from a solicitor who might have other lucrative business which has to be forgone, the level of the fee was not attractive in the context of other business to be done. But in the context of having an obligation to provide services for people charged with breaches of the criminal law, and in the context of the level of fees up to then pertaining, they were generous. However, that is the onlv criticism 1 have to make of the system of legal aiu in criminal cases. After the first couple of years—and I will not em- barrass Deputy Haughey by guessing why in the first couple of years there was some slowness on the part of the Courts in granting certificates of legal aid—it be- came clear that it would not break the Exchequer and I found that the Courts were forthcoming, and reason- able, and sensible, in granting applications for legal aid certificates. This is still the position. The percentage rate of applications granted is away up in the high nineties and it is only the very odd litigant, the very odd offender, or person charged, who is refused a 280

The motion deals with both criminal and civil legal aid. I shall speak first on the criminal legal aid side. Deputy Haughey was Minister for Justice when this was introduced and he deserves credit for what was then a pioneering move. As he freely admitted, it was a tentative move. It did not go into the field of civil legal aid. I think Deputy Haughey used the word "timorous" at one stage to describe the approach of himself and his Government, an approach which was, I think, necessarily forced on them by the need of having regard to the Exchequer. The Exchequer is in the background for all of us when we want to introduce reforms or improvements in our society. We can only move within the constraints of the national budget and those constraints, I have no doubt, loomed large in Deputy Haughey's field of vision when he was pioneer- ing this move in our legal system. Nevertheless, the move was a good one and it is wrong to denigrate or run down our present system of criminal legal aid. I believe that both the structure and the administration of our legal aid system are quite satisfactory. It can be criticised on the level of fee made available, and the involvement of the legal profession in it can also be criticised. Whether that is the fault of the legal pro- fession, or whether it is the fault of the level of the fee which has been offered from the beginning, is some- thing on which we can have an argument. There are faults on both sides. I speak as a person who practised law in a country town and who, from the time this system came into being, was glad to avail of it and considered that the