David Norris (Independent)

I am not at all fit. The Minister of State is correct and I thank him for his concern. I promise to do better and during the week I am going to inspect the fitness room. Enough of my immediate personal circumstances.

I want to address the personal circumstances of some of the even more afflicted members of our community. I want to address one specific element only because this is a rag bag of a Bill drawing together many miscellaneous provisions. I want to strike the question of free legal aid services, the amendment that is being introduced under this legislation and the context in which it has taken place. The water has been muddied by information emanating from the Minister's Department, in particular an article in The Sunday Times which I regard, since its acquisition by Mr. Rupert Murdoch, as a disreputable newspaper. The Sunday Times of 6 April carried an article which referred to an unpublished piece of research by a reputable group, Indecon. This research purports to examine the number of people qualifying for legal aid and the circumstances. It stated, and this provides the context for this debate, that under the existing provisions, 70% of the Irish population would qualify for legal aid. This is seen as excessive but I do not think it is. Where we are happy to give education more or less free of charge to everyone with no means test, I see no reason legal aid should not be as widely accessible as possible because costs in the law courts are enormous and are way beyond the means of a large number of people.

An unnamed spokesperson for the Legal Aid Board was quoted in the article as saying although the report needed to be validated, the members of the board were perfectly happy with Indecon's work. It is curious that they can be happy without validating the report. They applied legal aid thresholds to a broad spectrum of statistical information from across Europe and applied them specifically to Irish incomes and living conditions. However, no other information was given about the parameters of this research. The Free Legal Advice Centres applied for further information and were told the board was not in a position to express definitive views on the outcome. When they asked when this material could be made available they were told it was not clear. It was a kind of holding operation and they were put at arm's length. The same article points out that waiting times for February, just a month or so ago, confirms that five law centres have waiting lists of five months or more, including seven months in Wexford.

There was a case in the High Court, O'Donoghue v. the Legal Aid Board, the Minister for Justice, Equality and Law Reform and the Attorney General during which Mr. Justice J. Kelly said, with regard to the question of a reasonable waiting time, that whereas one could not compare it directly to what one would get if one acquired the services of a solicitor in the open market, it should be possible to reduce waiting times to a much more reasonable figure. He felt that the target of two to four months was applicable.

In that context, I wish to look at a specific amendment of section 29 (2) of the Civil Legal Aid Act 1995, which at the moment reads:

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.

That is as it stands at the moment. What is proposed under the Bill is an interesting change, whereby this provision is split into two parts — (a) and (b) — which is sinister. The proposed change is as follows:

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.

This introduces a very severe test and I do not think it is appropriate. It is being done because the Government is afraid that too many citizens will avail of this right, which is a basic one. It is miserly, penny pinching and unjust to introduce any such amendment and I will be opposing it when it comes before the House. I will table an amendment to this provision and will vote against it as it stands.

The Minister claims he is doing this because confusion has arisen due to the implementing regulations and he is attacking them. However, if the regulations are at fault, why does the Government not amend them? Why is it amending the primary legislation? That is a kind of conjuring trick and I do not like it. I remain to be convinced on this matter.

The situation at present is disastrous. The Free Legal Advice Centres have advised me that they believe the lengthy interpretation given in the other House is incorrect because the regulations do not limit the circumstances where the fees can be waived to those where only the minimum fee was payable. In specific terms, regulation 21(1) states:

The contributions, including the maximum income and capital contributions payable by a person in receipt of legal aid or advice under this Part, may be varied or waived having regard to sections 24, 25, 26, 27, 28 and 29 of the Act of 1995 and these Regulations.

The maximum income contribution, which is mentioned, refers to the maximum amount that a person may be asked to pay. A person must have a disposable income of €18,000 or less. Mercifully, the capital aspect of the enjoyment of a private home has been removed since August 2006. However, the existing legislation does not introduce the idea of "severe hardship". I ask the Minister of State to tell us what is meant by the term "severe hardship". Who decides on this? There is no definition of severe hardship available. People may in fact be in severe hardship in ways that are concealed. For example, a person may technically have a disposable income of €18,000 but may have binding financial commitments. People get into debt on their credit cards or they may have loan repayments which they are required to make, which can substantially reduce their income. Therefore, this stipulation regarding a disposable income of €18,000 does not amount to a real income test. What happens if €8,000 or €9,000 of that total must be paid out for mortgage or other such commitments?

I wish to put on the record what I see as the penny pinching aspect of this Bill. A person in receipt of legal representation who has a disposable income of over €11,500 is obliged to pay one quarter of the difference between €11,500 and the maximum disposable income of €18,000, plus the minimum contribution of €50. The contribution could, therefore, run from €1,000 up to €1,675, which is an enormous amount of money. It may seem nothing to us because, thank God, Members in this House are now in receipt of very considerable remuneration. However, to the average person in poor circumstances, with debt repayments to be made, it is a severe test.

The Minister said that confusion has arisen because implementing the regulations of 1996 purported to limit the applicability of the provisions enacted by the Oireachtas. It does not. That is wrong. Furthermore, if this was the Minister's main purpose, why, as I said earlier, does he not examine the regulations? I ask the Minister to review the situation because rather than broadening the access of ordinary citizens to legal aid, this provision will substantially narrow access by introducing an unclear, vague test of "severe hardship", which is wrong, unjust and unfair. I ask the Minister to withdraw the amendment.