Mr. John McDaid:

I thank the Chair. The Irish civil legal aid system has been in place for almost 40 years. It was put on a statutory footing with the enactment of the Civil Legal Aid Act 1995. The Act obliges the Legal Aid Board to provide legal aid and advice in civil cases to persons who satisfy the requirements of the legislation. It also requires the board to provide a family mediation service. The board furthermore administers a number of criminal legal aid related schemes in anticipation of legislation to transfer responsibility to the board for the administration of the main criminal legal aid scheme.

In order to provide civil legal services, we use a mixed model of service. We have 30 law centres and two specialist offices, all staffed with solicitors, while we refer out certain cases to private solicitors on a fee-per-case basis. Last year, we provided or facilitated legal services to approximately 18,400 new clients. Most of those will have received or be receiving an ongoing service. The majority will have involved legal representation in court, and many of those matters will be time consuming and often demanding cases. In 2018, approximately 71% of those who sought legal services from the board did so in relation to a family matter, just over 10% in relation to international protection, just under 10% on foot of the Abhaile scheme and 9% in relation to general civil matters. I have set out the level of demand in recent years for legal services from the board in the first appendix in my statement.

The civil legal aid system in Ireland is relatively speaking compared with other jurisdictions quite broad scope-wise. All civil matters are within the scope of the system unless specifically excluded, unlike in some other jurisdictions, notably England and Wales, which take the approach that all matters are excluded unless they are specifically included. The main case types that are excluded are defamation, small claims, disputes concerning rights and interests in or over land, licensing and conveyancing. Representative actions and group litigation are effectively excluded also. There are some exceptions to the exclusions.

One aspect of our legal aid system is that legal aid, that is, representation, can only be provided for cases before the District Court, the Circuit Court, the High Court, the Court of Appeal, the Supreme Court, the Coroner’s Court and any court or tribunal that is prescribed on foot of the legislation. It is a matter for the Minister for Justice and Equality to prescribe any tribunal or court, and he or she must have the consent of the Minister for Public Expenditure and Reform to do so. To date, the only tribunal that has been so prescribed is the International Protection Appeals Tribunal and its predecessor, the Refugee Appeals Tribunal. Legal aid is thus not available for cases before the likes of the Workplace Relations Commission.

In terms of comparison with other common law jurisdictions, the scope of civil legal aid in Ireland is very similar to Scotland and Northern Ireland, where the legislation operates on the same principles and with many of the same exclusions. England and Wales have effectively excluded most private family law disputes since the passing of legislation in 2012. According to the latest available Family Court Statistics Quarterly, published by the UK Ministry for Justice, the number of private family law cases where neither party is represented increased from 12% in January 2012 to 39% as of June 2019. Most Australian and Canadian jurisdictions do not fund, or only fund to a very limited extent, money damages cases, for example, tort and contract cases, while in Ireland these cases come within scope. In many European Union member states, other than the United Kingdom, Malta and Cyprus, the legal environment and rules are very different, and in some jurisdictions and courts, legal representation is compulsory. This makes comparing the provision of legal aid in such jurisdictions with our own very difficult.

Our financial eligibility criteria for legal aid are laid down in some detail in the legal aid regulations that have been passed between 1996 and 2017. Broadly, the regulations provide that a person’s disposable income must be below €18,000 per annum. Disposable income is assessed by taking gross income and deducting certain allowances. A person’s disposable capital assets must be below €100,000. The person’s home, if he or she is a homeowner, is not assessed as a capital asset for the purpose of the regulations. I have set out in the table in the second appendix the income and capital thresholds for a number of other common law jurisdictions. Allowances differ from jurisdiction to jurisdiction and so the thresholds may not be directly comparable. Research work that we did back in 2009 indicated that approximately 50% of the population was eligible for legal aid. We updated the research a couple of years ago using 2015 data and the finding was that eligibility was in the region of 46%.

It is common case that the rules of civil procedure in Ireland need updating, and I doubt that I can add anything to what the review group, chaired by Mr. Justice Peter Kelly, is likely to recommend. However, as I have alluded to, most of the work we do is in the area of family law, which is an area that Mr. Justice Kelly’s review group will not address. I strongly believe there is scope for reform of the family justice system. I wholly endorse the recent report of this committee in relation to that system, and our chairperson has publicly expressed endorsement on behalf of our organisation. We have worked with senior officials in the Department of Justice and Equality to progress the heads of a family courts Bill, which I am aware is just one reform aspect but it is a really important one. Our commitment to reform in this area is about pursuing better experiences and outcomes for persons going through a relationship breakdown, but it is also about having a more efficient system and thus being able to use our resources more efficiently. I echo the comments that have already been made by other contributors on that particular issue.

We have waiting times at our law centres, and it is always a concern of both the statutory board and my own to try to manage those as best we can. It is worth noting that approximately 57% of those who seek legal services from us will get an immediate or near-immediate service. We will always prioritise certain case types, including domestic violence cases and cases involving Tusla, where we are representing parents whose children are the subject of applications to be taken into care or under supervision. Most of those looking for legal services for a remedy in the District Family Court will be granted legal aid swiftly. Legal services on foot of the Abhaile scheme are effectively immediate. I am noting this not in any way to diminish concerns about waiting times.

In terms of impediments to improving the promptness of services to those who are waiting, one particular challenge at the moment is solicitor recruitment. We are limited to offering new recruits the first point on the pay scale. A number of other public bodies have been able to obtain flexibility within their scales in terms of what they can offer, but to date we have not been able to get that flexibility. A solicitor recently left us to go to another public sector body, anecdotally on the basis that he was going to be paid €15,000 per annum more. It is an ongoing issue to persuade the Department of Public Expenditure and Reform, and we are being supported by our own Department in this regard.

We refer work to private solicitors on a fee-per-case basis. The fees require the approval of our own Minister and the Minister for Public Expenditure and Reform. As an organisation that works on a closed budget basis, we have to strike a balance between maximising the number of cases that we can refer to private solicitors while at the same time ensuring that the fees payable attract enough solicitors to do the work. I doubt that many would argue that the Irish legal system is lay litigant friendly, though one qualification I would put on this is that it is notably friendlier in the District Family Court in Dublin. Situations like repossession lists are clearly difficult places for persons who do not have legal representation. On foot of the Abhaile scheme, we now have a duty solicitor service in county registrar’s possession courts, which the board facilitates and organises, and which may allow what would be lay litigants to get some level of legal assistance on the day of the court.

On the subject of class actions, I would urge that considerable attention is paid to any legal aid aspect that might be contemplated for such actions, as this could require a significant rethink in terms of the legal aid system. While it may be somewhat tangential, there are proceedings in being on behalf of a company limited by guarantee against the board where the company is seeking legal aid for the purpose of other litigation relating to the environment. I do not propose to comment on the other issues raised in the appendix to the committee’s invitation, though we would welcome members' questions on those issues or on any other matter on which we can usefully contribute. I thank the committee.