Brian Lenihan Jnr (Dublin West, Fianna Fail)

I move amendment No. 28:

In page 42, between lines 16 and 17, to insert the following:

61.—Section 29 of the Civil Legal Aid Act 1995 is amended by substituting the following for subsection (2):

"(2) The Board may—

(a) in accordance with regulations under section 37, provide legal aid or advice to an applicant without reference to his or her financial resources,

(b) waive any contribution payable pursuant to this section and to any other regulations under section 37, or accept a lower contribution, on the ground that a failure to do so would cause severe hardship to the applicant.".".

Amendment No. 28 results from a request made by the Legal Aid Board to clarify the criteria the board should have regard to in waiving contributions in respect of legal aid or advice. At present, section 29(1) of the 1995 Act provides, among other things, that a person shall not qualify for legal aid or advice unless he or she pays to the board a contribution towards the cost of providing the legal aid or advice determined in accordance with regulations under section 37.

Section 29(2) provides that "The Board may, in accordance with regulations under section 37, provide legal aid or advice to an applicant without reference to his or her financial resources and may waive any contribution payable pursuant to this section and to any other regulations under section 37 or may accept a lower contribution." Thus the current legislation provides for a number of things. First, it provides that the board may, in accordance with regulations made under section 37, provide legal aid or advice without reference to a person's financial resources. Second, the subsection provides that the board may waive any contribution payable pursuant to this section or any other regulation.

Nothing in section 29(2) warrants the interpretation that a waiver of or acceptance of a lower contribution only applies where the contribution payable is the minimum. Confusion has arisen because implementing regulations of 1996 purported to limit the applicability of the provisions enacted by the Oireachtas. It limited the circumstances in which the fees could be waived to those in which only the minimum fee was payable. Consideration of this conflict by the Department and the Legal Aid Board has resulted in the proposed amendment to clarify the situation. The relevant change to the conflicting regulation to bring it into line with the policy of the Act will be brought about by means of a statutory instrument.

The amendment provides that the grounds for the waiving of contributions are where not to do so would cause severe hardship to the applicant. This clarifying wording is in keeping with that used in Regulation 21(9) of the Civil Legal Aid Regulations 1996 and with the intention of the Act.

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