Pat Casey (Wicklow, Fianna Fail)
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I wish to ask the Minister for Justice and Equality, in light of ongoing concern about his Department's approach, what his Department is actively doing to bring Ireland into line with EU law by ensuring that limited companies can access our courts if they cannot afford to engage the often disproportionately expensive solicitors and barristers by whom our courts insist they must be represented. The previous Minister said in reply to parliamentary questions in 2016 that she was:

aware of case C-258/13 regarding Article 47 of the European Union Charter of Fundamental Rights ... While there are no plans at present to introduce legal aid for the type of commercial enterprise referred to, the situation is kept under review in my Department.

Article 47 of the EU Charter of Fundamental Rights, on the right to an effective remedy and to a fair trial, states:

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

In essence, this is being denied to small businesses in Ireland due to the rules that they must engage expensive legal representation in order to get redress before the Irish courts. As a businessman, on several occasions I have been in need of legal redress for relatively small amounts, but the certainty of the expensive legal cost involved ensured that I could not pursue the matter. Businesses in Ireland have enough stress without the added frustration of knowing that the justice system, which is paid for through our taxes, is denied to them.

With regard to intellectual property, there has been a major problem with protections for people with rights in this area. This has been raised on many occasions in both Houses of the Oireachtas. Holders of intellectual property rights are in many instances individual people who need their rights defended without incurring massive legal fees. They can do this in other EU countries but not in Ireland. This has been known by the Government for some years now and many Deputies on all sides of the Dáil, including the current Taoiseach, have tried to secure action on it, but it appears to have been lost in translation in the Department of Justice and Equality. It appears that the Government knows it is breaking EU law but is doing little about it. It also appears that the European Commission has been led to believe that the problem does not exist in Ireland.

Will the Minister tell the House what his Department or the Government has told the EU, either directly or indirectly, on this matter?

Charles Flanagan (Laois, Fine Gael)
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I acknowledge the important issue raised by Deputy Casey. At its root is the question of the impact of legal costs on small and medium enterprises in terms of their access to the courts and other means of legal redress. As such, the Deputy will appreciate that it is an issue which straddles both the Department of Justice and Equality and the Department of Business, Enterprise and Innovation in policy terms. That said, the Deputy will appreciate the priority that must be given to our more vulnerable citizens in the allocation of finite Exchequer funding in support of the provision of civil legal aid.

It is important to note the key structural and transparency reforms that are being made to the legal costs regime under the Legal Services Regulation Act 2015, which will also be of key benefit to business and small and medium sized enterprises. For example, as well as obliging legal practitioners to provide better costs information, the Act allows employed or corporate lawyers to act in proceedings on behalf of their employers and for direct access to barristers on non-contentious business. Another important development is the Mediation Act 2017, which will come into operation fully on 1 January 2018. The Act, which deals with disputes of a civil nature, will speed up the resolution of disputes, reduce legal costs associated with such disputes and reduce or avoid the stress involved in adversarial court proceedings.

In case C-258/13 cited by the Deputy, the Court of Justice of the European Union determined in its order of 28 November 2013 that it "clearly had no jurisdiction to rule on the question referred to it" including as it would have related to the interpretation of Article 47 of the EU Charter of Fundamental Rights.

Against a background of ever increasing demand for civil legal aid, great care was taken to maintain the Legal Aid Board budget during the recession. It has seen a budget allocation increase of 28% over the 2011 to 2017 period, with an increase of over 10% during the period 2016 to 2017. The board received an additional €1.25 million in the budget this year, bringing the budget to a total of €38.9 million. This has built on those other budgetary increases made in recent years - over €8 million since 2011 - to continue to reduce waiting lists and to consolidate services across a number of areas. This includes the Abhaile scheme for persons in mortgage arrears. It also includes provision for pay increases in 2018.

At present, the Legal Aid Board, which was established under the Civil Legal Aid Act 1995, provides civil legal aid and advice to persons of limited means who cannot afford to pay a solicitor privately. Section 5(1) of the Civil Legal Aid Act 1995 states that the principal function of the Legal Aid Board is to provide legal aid and advice in civil cases to persons, who satisfy the requirements of the Act. The board has always interpreted the word "persons" to mean natural persons only and not to include legal persons, that is, companies. Section 29(1) of the Act requires that a person satisfy certain financial eligibility criteria set out in regulations. The financial eligibility criteria set out in the civil legal aid regulations 1996-2013 clearly contemplate a natural person's income and resources being assessed.

There are no plans at present in the Department of Justice and Equality to introduce a scheme of legal aid for commercial enterprises. However, the Department is in regular contact with officials in the Department of Business, Enterprise and Innovation on cross-departmental matters and the situation in regard to legal aid of the nature referred to will be kept under review. I am not in a position to make any firm commitments to the Deputy having regard to constraints on my budget.

Pat Casey (Wicklow, Fianna Fail)
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I thank the Minister for his response. It is disappointing that a sector of Irish society, the small and medium sized enterprises that play a huge role in that society, is left without any support. To put it in perspective, we are talking about amounts in excess of €2,000. If the amount is above €2,000 we must engage the legal professions. It is equally disappointing that even the Chief Justice, Mr. Justice Frank Clarke, last September stated that there was little point in having a good court system if a great many people found it difficult or even impossible to access it for practical reasons.

He said it was increasingly becoming the case that many types of litigation are moving beyond the resources of many. The Taoiseach said it seven years ago when he asked the very same question, yet we are back here seven years later and there is still no movement regarding this aspect of legal aid or indeed tackling the small claims court and looking at increasing the claims amount there. I understood that this requires just a statutory instrument, which would insert language into the small claims court legislation allowing these claims to go through an easier court system, one that does not require as many complicated forms as barristers or solicitors. Intellectual property should be considered as a separate entity.

Charles Flanagan (Laois, Fine Gael)
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While I appreciate that Deputy Casey would support the provision of civil legal aid to small businesses and enterprises, it is important that we do not lose sight of the enhanced and much more transparent legal cost regime that is being introduced at the moment under the Legal Services Regulation Act 2015. This will impose greater transparency obligations on barristers and solicitors in the charging of legal fees to private and commercial clients and includes discussing the legal costs implications of any new developments in a case with a client before proceeding any further. The Act allows employed or corporate lawyers to act in proceedings on behalf of their employers and for direct access to barristers on non-contentious business. It also allows barristers sharing a premises to advertise themselves. This had all been prevented under existing codes. Under the Act, it will not be permissible for legal practitioners to set fees at a specified percentage or proportion of damages payable to a client from contentious business. Moreover, it will no longer be permissible for barristers to charge junior counsel fees at a specified percentage or proportion of those pertaining to senior counsel. In addition, there will be a new office of the legal costs adjudicator, which will replace the existing Office of the Taxing Master and maintain a publicly accessible register of determinations. It will be supported in its decisions by a set of legal cost principles contained in Schedule 1 to the 2015 Act.

As Deputy Casey may appreciate, a review of the administration of civil justice in Ireland has recently commenced under the chairmanship of the President of the High Court, Mr. Justice Peter Kelly. Among other things, this review will consider such areas as access to justice, reducing the costs of litigation, ensuring timely hearings and the removal of obsolete, unnecessary or indeed over-complex rules of practice and procedure.

On the matter of extending the scope of civil legal aid to corporate entities, I again point to the enormous demand for such legal aid, including in respect of sensitive litigation in areas such as family law. As I mentioned in my opening remarks, priority continues to be given to our more vulnerable citizens in the allocation of finite Exchequer funding in support of the provision of such legal aid.