Charles Flanagan (Laois-Offaly, Fine Gael)

I am not sure whether that is the case because my understanding is that this is a new amendment to which reference was not made on Committee Stage. This is why it has given rise to some concern, that these are new amendments being tabled by the Minister that did not appear to have been part of the discussion on Committee Stage. For that reason I wish to seek clarification from the Minister on a submission that has been made by the free legal advice centres with particular reference to amendment No. 28 and the consequent amendment to section 61 of the Bill and, in turn, section 29(2) of the Civil Legal Aid Act 1995.

I accept what the Minister said, that the amendment is in response to a submission by the Legal Aid Board. I hope if there is confusion that we can deal with it satisfactorily. In terms of the purpose of the proposed amendment to section 29(2), it appears that the board has the power to grant legal aid without reference to a person's financial resources. This would require regulations under section 37 to be passed, given that reference in the amendment is to certain regulations. The proposed section 61(2)(a) states "in accordance with regulations under section 37, [the board may] provide legal aid or advice to an applicant without reference to his or her financial resources,"

I am somewhat concerned at the fact that this is in accordance with regulations because I am given to understand there are no such regulations. If that is the case, there is no such power. I may be mistaken in that and if I am, I am prepared to stand corrected. However, if there are no regulations it is difficult to see how that power might be vested.

It was also put to me that there is another possible construction, that there is a general power under the subsection to provide legal aid without reference to a person's resources of a financial nature and to waive or reduce any contribution for legal aid services, and specific regulations are not required to do so in any event. Is the Minister inadvertently or otherwise attempting to ensure that in future this point cannot be argued?

As I understand it, there is an element of latitude at present, notwithstanding the means test, and that is well founded if not in statute law then certainly in precedent. I hope the import of this amendment will not give rise to a situation where such discretion or latitude no longer applies. I am somewhat concerned at the speed with which the amendment has been put forward and the fact that nothing similar appeared to have been in the Bill in an earlier construct.

I accept the Minister's good faith in the matter, that we must avoid a situation where, unwittingly or otherwise, hardship might accrue to an applicant on the basis that the amendment gives rise to a removal of the current latitude. I am concerned that if the circumstances in which contributions can be waived or reduced is narrowed to such an extent, it may cause difficulties.

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