The Gazette 1995

GAZETTE

JULY 1995

N E W S

The Civil Legal Aid Bill, 1995

by Sabha Greene*

seems to us to be no logical basis on which any particular case category could be excluded. The merits of any case and the question of granting legal aid should be assessed, not by reference to the category to which it belongs, but by reference to the particular circumstances of the case." 6 Furthermore, where the matter is to be dealt with at a tribunal, such as the Employment Appeals Tribunal or the Social Welfare Appeals Officers, the Scheme and the Bill provide that legal aid is to be refused, albeit that the Bill enables the Minister to include tribunals by Order in the future. However, during the recent Committee Stage of the Seanad's debate, a number of Senators successfully proposed an amendment to extend immediately legal aid to such tribunals. 7 As well as the emphasis being firmly on the area of family law, civil legal aid has developed as a purely representational service. It was designed to assist those who wish to enforce a legal right but are unable to afford paid legal representation. Yet research clearly demonstrates that lack of finance is only one reason that people do not have access to the justice system. A lack of awareness of one's legal rights and obligations can be as great a factor in ensuring that people do not have equality of access. In its deliberations the Pringle Committee recognised that there are many reasons why people living in poverty are deterred from seeking the services of solicitors. Apart from a lack of finance they also identified a lack of awareness of one's legal rights as a reason why people do not approach lawyers. Similarly there is a lack of knowledge as to the services which are available. Many people affected by poverty do not see their problems as having a legal solution, for example housing or social welfare issues. Others, while recognising that

In March of this year the Minister for Equality and Law Reform, Mervyn Taylor, TD, introduced the Civil Legal Aid Bill in the Seanad'. The purpose of the Bill is to place the Scheme of Civil Legal Aid and Advice 2 on a statutory basis, but it provides foronly limited improvements. This may be due to the fact that the Bill has been drafted in the absence of any formal evaluation of the 15 year old service. While the Free Legal Advice Centres have long campaigned for the Scheme to be placed on a statutory footing, it is regrettable that its inadequacies are to remain virtually intact. It was in the late 1960s that the campaign for the introduction of legal aid in civil cases began to gain momentum, with the establishment in 1969 of FLAC, an organisation with the stated aim of campaigning for the introduction of civil legal aid. In 1975 the Coolock Community Law Centre was set up, to this day the only example of an independent community based law centre in Ireland. Soon after, in 1977 the Pringle Committee 1 made its report to the Department of Justice with the majority favouring the introduction of a comprehensive State service for those unable to afford private lawyers. The Committee went on to make recommendations for a scheme of civil legal aid and advice, which included the establishment of community based law centres, an active role in making recommendations for law reform, and an obligation to provide education services. However, it was not until the decision of the European Court of Human Rights in the 1979 case of Airey -v- Ireland* that the government established the Scheme of Civil Legal Aid and Advice. In 1980 the Minister appointed the Legal Aid Board and the first Law Centre was opened.

Sabha

Greene

to the new ministry. This marked a fresh commitment to legal aid and since his appointment the Minister has secured significant increases in funding. However, the nature of the service remains largely unchanged since its inception, and it has become an almost exclusively family law representation service, a fact evident from the most recent figures published by the Legal Aid Board 5 :

LEGAL AID CERT I F ICATES AWARDED IN FAMI LY LAW - 1,791

L EGAL AID CERT I F I CATES AWARDED IN OTHER CAS ES - 63

This development is due to a number of factors. Firstly, many areas of law are excluded from the remit of the Board. For example, there is no legal aid for defamation, property disputes or debt enforcement. Not only are certain areas of law excluded but also certain types of case such as group actions or where the subject matter of the application is of "a kind commonly described as a test case". The Pringle Committee addressed this question and made the following conclusion: ". . . in a comprehensive scheme, legal aid should be available for all types of civil proceedings. There

Since then the Department of Equality and Law Reform has been created and responsibility for civil legal aid moved

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