Tony Killeen (Clare, Fianna Fail)

Gabhaim buíochas leis an Seanadóir as ucht an ábhar tábhachtach seo a chur faoi bhráid an tSeanaid. My colleague, the Minister for Justice, Equality and Law Reform, is unable to attend and has asked me to extend his apologies and thank the Senator for raising this issue. It is a welcome opportunity to provide information on legal aid, both civil and criminal, and, in particular, to deal with some of the issues arising.

The Criminal Justice (Legal Aid) Act 1962 provides that free legal aid may be granted in certain circumstances for the defence of persons of insufficient means in criminal proceedings. Criminal legal aid is granted in all courts, including the District Court, the Circuit Court and higher courts. Under the Act, the grant of legal aid entitles the applicant to the services of a solicitor and, in certain circumstances, up to two counsel in the preparation and conduct of his or her defence or appeal. The judgment of the Supreme Court in Carmody v. the Minister for Justice, Equality and Law Reform in late 2009 extended the right to representation by counsel where a case contained a degree of gravity and complexity, as well as other exceptional circumstances, which taken together necessitated that legal aid should be granted.

Legal services under the scheme are provided by private solicitors and barristers who have notified the Minister for Justice, Equality and Law Reform and county registrars, respectively, of their willingness to have their names placed on panels to undertake legal aid work. The Department is responsible for the payment of legal aid fees and expenses to the legal practitioners but has no involvement in the day-to-day operation of the scheme, the assignment of lawyers or the granting of free legal aid, which are matters handled entirely by the Judiciary.

Criminal legal aid, with the exception of the Attorney General's scheme, is funded by the Department of Justice, Equality and Law Reform under Vote 19. The cost of the criminal legal aid scheme to the Exchequer has risen year on year, from just over €40 million in 2005 to €60 million in 2009. The rise in costs can be attributed to a number of factors which include an increase in the number of legal aid certificates awarded by the courts, in which there was an increase of 50% between 2005 and 2009. In addition, an increase in resources during the same period within the Garda Síochána and the Judiciary led to a rise in the number of arrests and reduced processing times for court appearances. For example, the number of judges rose from 126 in 2006 to 148 in 2009. Moreover, more efficient court practices have reduced backlogs but increased the throughput of cases.

Rates paid to solicitors in the District Court in previous years were increased annually in line with national wage increases and between 2000 and 2009 the District Court rates increased by 40.5%. However, in 2009 reductions of 10.5% were made as part of an overall reduction in fees, including an 8% reduction under the Financial Emergency Measures in the Public Interest Act 2009. The initial financial allocation for criminal legal aid in 2010 was €51.6 million. However, that allocation was reduced by the Department of Finance by a further 8%, reducing the allocation to €47.4 million. Therefore, savings of €4.1 million are required in 2010. In this regard, a further reduction of 8% in fees for all professional criminal legal aid services will be implemented shortly.

The bulk of transactions and costs regarding criminal legal aid pertain to the District Court and the Circuit Court, at 39% and 43%, respectively. The Circuit Criminal Court has a lower number of cases, comprising 12% of the total, albeit of a more serious and costly nature. The greatest cost increases in the past two years are associated with an increased volume of criminal cases before the District Court, of which there were 550,694 in 2008, which constitutes an increase of 26% on the figure for 2007. Although the District Court cases are generally at the lower end of the scale, there has been a significant increase in the volume of indictable crimes dealt with summarily in that court. The number of such cases in 2008 was 68,491, which represents an increase of 42% on the figure for 2007.

The Civil Legal Aid Act 1995 provides the statutory basis for the administration of civil legal aid and advice services provided by the Legal Aid Board. The Act provides a statutory entitlement to all applicants for civil legal aid and advice. To qualify for services, individuals are required to satisfy the board's financial eligibility requirements. The service is provided, in the main, by solicitors in the full-time employment of the board working in law centres established by the board. In addition to the network of 30 full-time law centres and the medical negligence unit, legal services are also provided through 12 part-time law centres. A complementary service was introduced in 1993, whereby the board engages private practitioners in barring order, maintenance and custody cases. The Act empowers the board to establish a panel of solicitors in private practice to provide legal aid and advice. Services of counsel are provided in accordance with the terms of an agreement between the Bar Council and the board. The board also provides legal services for asylum seekers, since 1999, and, more recently, victims of human trafficking.

The level of funding for the law centres decreased by 2.5%, from €26.988 million in 2008 to €26.31 million in 2009. In the latter year 14,073 applications were made at law centres, which was 18% ahead of the level of demand in 2008. The increase in demand for the Legal Aid Board's services has the knock-on effect of increasing the need for the board to use counsel in appropriate cases and private practitioners in circumstances where a law centre is not in a position to provide a timely service. At the end of 2009 expenditure on counsel fees had increased by 5% over the 2008 expenditure figure and 7% over the figure for 2007. Notwithstanding the fact that the board applied the 8% reduction in counsel fees from 1 March 2009, the application of the 2009 reduction does not have an immediate effect on reducing the fees payable to counsel during 2009 because a considerable period of time is likely to elapse, approximately two and a half years, from the point at which a barrister is briefed until the case is completed and a bill presented for payment. Increased demand for the board's services also has an impact on the usage of counsel in cases.

Expenditure during 2009 on private practitioners in the District Court increased almost threefold on the 2007 expenditure figure. This reflects the Legal Aid Board's increased usage of the District Court private practitioner scheme to meet the increased demand for its services in recent years. The private practitioner scheme in the District Court assists the board in its efforts to provide a service for all eligible applicants in certain District Court matters, namely, domestic violence, custody, access and maintenance cases, within a reasonable period of time and at a modest cost. The number of legal aid certificates granted in 2009 was 3,921, almost double the 2007 number.

The Senator's concerns regarding legal aid reflect those of the Minister who has indicated a number of times in the recent past the Government's commitment to examining all of the issues associated with the provision and cost of legal aid and to establish the potential for savings and efficiencies. The forthcoming Criminal Justice (Legal Aid) (Amendment) Bill will contain provisions that will enable the introduction of a more robust method of means assessment and substantially increase the penalties for fraud and restrict the power to grant additional counsel to the trial court. In parallel, the potential to achieve further reductions through changing existing administrative systems and a market-based approach to the procurement of legal services is also being actively pursued. The issues and concerns identified in regard to costs in our criminal legal aid system are shared by other jurisdictions and any learning that can be taken from other international models will be applied if the evidence suggests it is appropriate to do so.

The Government is clear about its objectives in the area of legal aid; it will continue to guarantee the right to legal aid, as enshrined in the Constitution, to those who cannot afford their own legal representation but will do so through effective and efficient use of public funds.