Professor Gerard Whyte:

I thank the committee for inviting me to address it on this very important topic. In my opening statement, I will address five different points. I will start by looking at the various barriers to access to justice. As has already been indicated, there are a number of different factors that impede access to justice. Chief among these is the issue of cost but there is also the question of people being unaware of their legal entitlements. The Pringle committee further identified psychological or cultural barriers between disadvantaged individuals and communities and the legal world. The nature of certain legal problems can also be an issue here. What are known as problems of a diffuse nature, for example, in the area of consumer protection or environmental protection, can pose particular problems because they can impact on a large number of people but not on any one particular individual significantly or sufficiently to motivate that person to take legal action. The special position of people with disabilities is another issue. I know the committee is aware of section 42 of the Irish Human Rights and Equality Commission Act, which imposes on all public bodies a duty to address issues of discrimination in the manner in which they deliver services. This clearly applies to the Legal Aid Board. I thought it worth mentioning that in a High Court decision in 2012, Mr. Justice Hogan also identified a constitutional duty imposed on the courts under Article 40.1 of the Constitution to make reasonable accommodation for litigants with physical disabilities.

I will briefly describe the different responses one can take to these barriers to access. Models of legal aid fall into two categories. The more restricted or conservative model is known as the service model. This model focuses very much on the individual litigant and seeks to address the problem of cost. Generally speaking, a service model will not address the other barriers to access I have mentioned. Moreover, the service model provides what I would describe as conventional legal services and would not engage in programmes of political lobbying or education. In contrast, the strategic model does attempt to address the various barriers I have mentioned. Whereas the focus of the service model is very much on the individual, the focus of the strategic model is on the individual as presenting or representing a structural problem in society. Strategic models will address not only the issue of cost but will also deal with the issue of people being unaware of their legal rights by providing programmes of legal education. They will also try to address the psychological or cultural barrier by locating their services in disadvantaged areas to put people at their ease. They also engage in campaigning for legal and social reform regarding the problems their clients present to them. In the Irish context, the strategic model is represented in the voluntary sector among community law organisations while the Legal Aid Board would use the service model.

I draw the committee's attention to a recent report published by the World Bank and the International Bar Association entitled A Tool for Justice: The Cost Benefit Analysis of Legal Aid, which was published in September 2019. It is a cost-benefit analysis of legal aid that looks at various jurisdictions. Unfortunately, Ireland was not one of the jurisdictions that was examined but the central point made by the report could equally apply here. It is argues that while the provision of legal aid involves an immediate cost, it can bring about significant savings for the State in other areas. In thinking about legal aid, we should not see it simply as net expenditure. There are savings to be made and this warrants investment in legal aid.

I will say a few things about the statutory scheme of civil legal aid. I preface my remarks by acknowledging the great work done by the Legal Aid Board in delivering legal aid to individuals over the years in particularly trying circumstances. I will highlight three limitations of the current scheme. Some of these have already been mentioned. The first is that the current scheme does not extend to the provision of legal representation before tribunals. As has already been mentioned, social welfare appeals tribunals, cases going before the Workplace Relations Commission or cases going before the RTB are key areas, particularly for disadvantaged individuals, yet the current scheme means that the Legal Aid Board is not in a position to provide representation for anyone appearing before those tribunals.

The second limitation I would like to highlight refers to the exclusion of disputes concerning rights or interests in or over land from the availability of legal aid certificates. At best the position here is unclear and at worst this exclusion could prevent the Legal Aid Board providing legal aid in respect of housing cases. I have heard anecdotally that the board sometimes provides such support but it is not clear that this comes within the terms of the legislation. It is an area that requires clarification.

My final point regarding the Legal Aid Board is to highlight the delays involved in obtaining consultation with solicitors in various centres. In my submission I give more detail on the delays in various centres, which in some cases are in excess of a year. This highlights the point that the Legal Aid Board is significantly under-resourced. There is, again, anecdotal evidence that the board is having difficulty recruiting staff because the payscales it offers are simply not competitive with the private market or other positions in the public sector. It is a serious matter that must be addressed quickly.

The other matter before the committee is litigation and rules of procedures. I will make two very quick points in this regard. There is a need for an appropriate system of class actions. I understand legislation is currently before the Oireachtas on the topic and this mechanism is important. Looking at the sort of law handled by law centres, the areas often have a significant public impact. For example, in the area of social welfare, one social welfare claimant bringing a case could stand in the place of hundreds or perhaps even thousands of similarly situated welfare claimants. An effective mechanism for processing those sort of disputes is by way of class action but, unfortunately, the mechanisms we have in this jurisdiction are not fit for that purpose. Some change is needed here as well.

I mention in my submission that an alternative to class actions in some types of cases is for Departments to be encouraged, where they have been sued, to actively review their files and see if there are similarly situated cases that have not yet been litigated. I commend the Department of Employment Affairs and Social Protection as when it was sued in respect of the implementation of the third equality directive in the 1980s with respect to equality for men and women in social welfare, it engaged in just such an exercise. In the absence of a class action, it is certainly something to be commended.

I will mention the mechanism of a protective costs order, which is available to the courts and can be granted to somebody in advance of litigation taking place. It offers a sort of assurance to the litigant that even if the litigation is unsuccessful, the liability for costs would be limited. However, that mechanism has a major limitation in that it is not available to a litigant with a personal interest in the litigation. It only applies to a case where somebody is acting altruistically in the public interest. For example, it would not apply to a social welfare claimant challenging the policy of the Department, although the policy would have implications for many others. In my submission I highlight the matter and suggest that perhaps rules or procedures could be drafted to broaden the availability of this mechanism.