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GAZETTE
W
N
SEPTEMBER 1992
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
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
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.
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