The Gazette 1992

GAZETTE

SEPTEMBER 1992

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The Legal Aid Deficit

The Government's record on legal aid - both civil and criminal - is shameful. Thirteen years after the Airey judgment of the European Court of Human Rights, we still do not have a comprehensive scheme of civil legal aid in this country. Instead, 16 law centres, employing between them only 34 solicitors, attempt to provide a service. There are by contrast approximately 3,700 solicitors in private practice. Considering that one third of the population is dependent, to some extent, on social welfare payments and, therefore, unlikely to be able to afford to pay for legal assistance, the minimalist approach of the Government becomes obvious. Owing to the lack of resources, the law centres cannot keep up with demand. Some have had to close their doors to new clients. In others, there is a waiting period of six months. The system is as best providing a "casualty" service, and then virtually only in family law. Within the past year, the Law Society, FLAC and the Irish Commission for Justice and Peace have all raised their voices on at least one occasion to highlight the inadequacy of the scheme of civil legal aid. The Law Society has recommended that a fully comprehensive scheme of civil legal aid should be introduced without delay, and has estimated that, by efficient utilisation of solicitors in private practice, expenditure on an adequate scheme would be in the region of only £6 -7 million per annum. The Government's recently published White Paper on Marital Breakdown contains a commitment that "as and when the availability of financial resources and the overall situation with regard to the public finances

statement of intent is welcome, it falls far short on specifics. The situation in regard to Criminal Legal Aid, is now in an equally, if not more, perilous state. After seven months of patient negotiation by the Law Society, the Department of Justice has failed to make a realistic offer on an increase in fees for solicitors who undertake criminal legal aid in the District Court and has made no offer at all in relation to work in the Circuit Court. At present the level of fees in both the District Court and the Circuit Court is wholly unrealistic. A solicitor who does all the preparatory work on the case and represents the accused in court, is in many instances paid only the same or less than a professional witness. The current level of fees fails to take into account the substantial overheads a solicitor incurs in maintaining an office, and indeed, in preparing cases. Furthermore, the Department of Justice has refused to pay any fee to solicitors for visits to Garda stations to advise accused persons who are in custody. The Government appears to have adopted the attitude that criminal legal aid work is less valuable, or less important, than other legal work since it is prepared to pay only a fraction of the fees that would be payable for comparable work in civil cases. If that is the underlying philosophy of its approach, we would challenge it. In a criminal case a person's liberty is often at stake and defending the rights of accused persons is work of a high order of importance. In failing to provide a realistic scale of fees is the Government saying that those who qualify for criminal legal aid are only entitled to a second class service? Many solicitors in this country, in the course of their practices, do much pro bono work quietly and forego fees where a client finds himself in desperate circumstances.

However, it is unrealistic of the Government to expect a formalised, in-built subsidisation of criminal legal aid by solicitors who serve on criminal legal aid panels. Solicitors have put up with paltry fees for years because they were reluctant to place further pressure on an already chaotic courts system. That has now changed and lawyers are unwilling to continue to subside the scheme. The blame for the breakdown must be laid at the feet of the Government. The time has come to make the Government face up to its responsibilities. The Law Society has said that it believes any solicitor who wishes to withdraw from the criminal legal aid panel is justified in doing so. Already, solicitors in Cork and Sligo have withdrawn en masse from the panel, though they will, of course, continue with any case already underway. At the time of writing, solicitors in other parts of the country are considering what action they will take. Access to justice is an indispensable feature of a modern democratic state that cares about all of its citizens and believes in equality. When it comes to access to justice, the greatest care has to be taken to protect the rights of those who have the least resources. Constitutional rights are meaningless if people have no means of enforcing them. Likewise, there is little point in introducing social legislation if those seeking to pursue their entitlements under the legislation cannot do so owing to lack of means. The Government needs to rethink its attitude to the provision of legal aid in both the civil and criminal spheres. What is required is the introduction - immediately - of a comprehensive statutory scheme of civil legal aid. On the criminal side, it is time for the Department of Justice to come back to the negotiating table with an offer of a scale of criminal legal aid fees that is realistic and represents fair payment for the work involved.

allow, the Civil Legal Aid Scheme will be developed and expanded through the phased (our emphasis) opening of additional Law Centres. Legislation will be introduced to place the scheme on a statutory footing". While this

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