Barry Ward (Fine Gael) | Oireachtas source

At the outset, I will also declare an interest in that I am a practising barrister in the area of criminal law, so I am a recipient of legal aid. I am a member of the Bar and also a member of the Irish Criminal Bar Association but I have no pecuniary interest in either body.

It has already been acknowledged that the withdrawal of services that took place today is a reflection of an extraordinary situation that faces barristers. In many ways, it shows the depth of feeling at the Bar and it has been echoed by some of the speakers today regarding the fundamental unfairness of the complete failure to unwind cuts that were justifiably made over a dozen years ago but remain entirely unaddressed. It is very much the case that legal aid practitioners are exceptional in that regard. As we appear in court, we are the only members of any professional body in there who have not been restored. Judges, members of the Courts Service, gardaí, people working for State agencies or anybody else have all had their fees restored.

On this Bill, I accept what has been said about the importance of legal aid. Obviously, it is not just an Irish thing. It is an international obligation we have in accordance with European and other international laws. I noted what Ms Phelan about how it is easy for most of the population to ignore legal aid because it does not affect them. It is only when it affects them that they realise just how important it is, that is, when one is accused, falsely or otherwise, of an offence, or when someone in one's family is accused, or when somebody has been the victim of a crime. I endorse absolutely what has been said about the need for representation for complainants and victims of crime as well, and I will come back to that in a second. This is a rule of law issue. It is tremendously important, and it is far too easy for most of us to ignore it. As somebody who works in that area, I see every day just how vital legal aid is.

With regard to this Bill and how it is going to operate, I have a number of questions. The suggestion is that the legal aid board is going to achieve greater efficiencies. I would love to know how. For example, head 15(3) of the Bill relates to the grant of legal aid and the examination of what constitutes the justice of a situation and the means and things like that. Currently, that is done by a judge sitting alone, mostly in the District Court but sometimes in higher courts. By doing that, are we not delegating the function away from a judicial figure and giving it to a Civil Service body, which is not working in a court and is not working with these situations on a day-to-day basis? I wonder how that creates a greater efficiency. There is an extent to which I think, "If it ain't broke, don't fix it". We actually have a very functional legal aid system, leaving aside the dissatisfaction of some of the people who are the recipients of the moneys in that system. For the people who are the beneficiaries of it, it is a fairly streamlined system and it works pretty well.

Coming back to the issue that has been raised by the Rape Crisis Network and Safe Ireland in relation to representation, I absolutely and wholeheartedly endorse what they have said. I agree with the splitting of head 47 into two clearer heads. I think that makes absolute sense. What view do the witnesses have on the selection of a solicitor by such a complainant? At the moment, I understand they do not necessarily get to choose their solicitor. How would they feel about it if, in the same way a criminal defendant gets to choose who his or her solicitor is, a complainant had that choice rather than being obliged to go through the systems as they work at the moment? I agree also that there should not be a means test for those people. It is a nonsense that if someone is the victim of crime or the complainant in a case that they then have to put their hand into their own pocket simply because they may be well enough off to do that. In the same way the criminal injuries compensation tribunal operates, it makes sense that victims be backed up in that regard.

I would like to hear more about the harm-led definition. With regard to what the Rape Crisis Network said, is there a danger that that makes it unworkably wide? How do we prevent it from being unworkably wide? We cannot have a situation where every victim in every case in every court has also got a solicitor and counsel present representing them. Nobody is suggesting that but how do we stop a situation where that happens?

Maybe the Bar Council will have a view on this question. I do not know of any particular case where this has been set down in monetary terms. I do not think it has but the means test as defined in head 15(6) does not specifically say, for example, that disposable income is included or excluded. It looks at the means test without properly defining it. Do the Bar Council or the Irish Criminal Bar Association have a particular view on how the means should be set? Does it makes sense to peg the means test to a particular level of income or a particular instrument or something like that?

Another concern I have relates to head 15(7), which states that the court is entitled to take into account someone's failure to co-operate with it. I have a difficulty with that notion that legal aid should be denied if someone is belligerent or unco-operative, which to a large extent people are entitled to be. In fact, it does not make sense in those circumstances to deny them legal aid. One of the things I have seen is that the Judiciary and those who are in charge of the courts actually want counsel involved in those cases because they will put order on them and will allow cases to move forward in a way that is much more efficient. Does anybody have views on any of those points? I am sorry that I have thrown a scattergun out there for everybody and anybody but those were the issues I wanted to raise.