The Gazette 1993

APRIL 1993

GAZETTE

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N 'S M T

p R E S

D E

E S S A G E

Legal System Suffers from Acute Underfunding

Convention on Human Rights generally is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the importance in a democratic society of the right to a fair trial. The response by this country falls far short of what is required. The Law Society has made a full submission to the Government in regard to the introduction of a comprehensive scheme of civil legal aid. Lawyers have an important role in society, in that clients rely on lawyers for the protection and vindication of human and constitutional rights. Clients rightly request solicitors to defend them in cases taken against them by the State under the criminal code and rightly require solicitors to institute or defend proceedings for compensation and other civil claims. Because of the serious lack of a proper civil legal aid system in this country, there is a strong pro bono tradition amongst lawyers under which they frequently take cases, without charging a fee, for clients who could not otherwise afford to vindicate their rights and pursue justice. Solicitors, in common both with other business people, have over the years been required to become part of the system of tax collection, particularly in cases of stamp duty, registration fees and capital taxes. Solicitors are also professionals in the business world, running businesses that give employment and generate a high level of economic activity. It seems to me that the successive Governments have consistently undervalued the importance of solicitors' involvement in the economy. The most outstanding example of this is the attack by Government on the traditional cornerstones of solicitors' work - Lawyers' Role in Society Undervalued

In my address to the Annual Dinner of the Council of the Law Society, which took place on 11 March last, I dealt with a wide range of issues of concern to solicitors and, in particular, the acute underfunding of the administration of justice in this country which I believe is bringing the legal system into disrepute. As a result of such under resourcing the basic rights of many citizens are not being provided for as they should. Too few judges, unsuitable courthouses, the lack of any real facilities in them, unreasonable delays in the courts, insufficient investment in technology and, I am sad to say, inadequate management, insufficient custodial facilities, the failure to update the law in many areas and, finally, the abysmal system of legal aid are now giving rise to serious concern. I hope that by highlighting these difficulties, appropriate remedies can be sought for them. While I am delighted that the Judicial Commission, provided for in the Programme for Government, is now being established, I would urge that representatives of both branches of the legal profession should be appointed to the Commission. Forthcoming legislative changes in regard to family law will again seriously call into question the adequacy of our present system of legal aid. To give a comparison, the current budget for legal aid both criminal and civil in this country is about £6 million per year, in England and Wales alone the corresponding figure is £1,200 million. On a proportionate per capita basis they are spending 14 times as much as we are. The State's obligation to provide a comprehensive system of legal aid has been established by the European Court of Human Rights in the Irish case of Airey where it was clearly stated that the European

probate and conveyancing - by permitting banks and other financial institutions to engage in these activities. Government also "rewards" the profession by annually bringing in layer upon layer of bureaucratic procedures of very dubious value, such as further certificates and declarations for particular transactions, which not only complicate matters and delay overburdened practitioners, but also expose them to greater liability. Government also burdens solicitors by increasing the amount of tax to be collected by them. Registration fees, courts fees and other form of hidden taxes are regularly increased without notice, and without debate. For example, this year's budget introduced a new probate tax under which those inheriting under a will or an intestacy will have to find substantial funds in advance in order to obtain a Grant of Representation which would allow them the legal right to gain access to the assets of the deceased's estate. While I admire the imagination of the Department of Finance and its ability to squeeze further taxes from unlikely sources it is nevertheless unfortunate that survivors and dependants should be treated in this way. These are just some of the issues I dealt with in my address to the dinner which was attended by a number of judges, members of the Oireachtas, and representatives from other professional and business organisations. We were particularly fortunate to have Lord Williams of Mostyn QC, a former chairman of the Bar Council of England and Wales, as our guest speaker (see page 88), and I would like to put on record my personal thanks to him.

Raymond T. Monahan, President.

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