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'

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):

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

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

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