Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

Amendments Nos. 25 and 26 propose to insert a new Part 6 into the Bill which provides for the amendment of the Coroners Act 1962 and the Civil Legal Aid Act 1995 to provide for legal advice and aid in respect of certain inquests. As I mentioned on Second Stage, the Coroners Bill 2007, which has been restored to the Order Paper for this House, is in the course of being reviewed in my Department. That review essentially focuses on the development of the optimum administrative and jurisdictional structures which in the most cost-effective way can best deliver the planned reform of coronial law.

The Bill, as published, provides for the comprehensive reform of the existing legislation and structures relating to coroners and provides for the establishment of a new coroner's service. The European Court of Human Rights has in recent times emphasised the importance of ensuring the next of kin of the deceased can effectively participate and engage in a coroner's inquest into certain categories of death such as those limited number of cases where death is at the hands of the State. This right to effective engagement includes the provision of information prior to the inquest. This means that in certain cases, families may require legal assistance to participate effectively in the inquest process.

I should make it clear that I am not introducing a legal aid scheme for participants at any or all inquests. This is because an inquest is an inquisitorial process which does not establish civil or criminal liability. Rather, I am providing for the targeted provision of legal advice and aid in certain defined scenarios where the participation and engagement of next of kin is considered necessary and desirable and where they do not have sufficient means to provide for that representation. No eligibility criteria in regard to financial means operated by the Legal Aid Board will apply in these situations. Neither am I providing for free legal aid to pursue civil actions by next of kin. The legal assistance provided is in regard to the death investigation only.

This matter was addressed in the Coroners Bill 2007 which proposed in section 86 for the introduction of a legal aid scheme for proceedings before a coroner and in section 92 for the required technical amendments to the Civil Legal Aid Act 1995. These changes would permit the Legal Aid Board to arrange for the granting of legal advice or aid to the family of a deceased person for legal representation at an inquest where the person has died in or immediately after being in State custody or certain institutional care situations. Given the importance of these matters, being conscious that progressing the Coroners Bill 2007 may take some time and in light of the State's obligations under the European Convention on Human Rights, I am of the view that the Courts Bill presents an opportunity to address the issue of legal aid at certain inquests.

Accordingly, the amendments I am moving today propose to include the broad provisions contained in sections 86 and 92 of the Coroners Bill 2007 in the Courts Bill with some refinements to the text to take into account developments since the Coroners Bill was published. An important consideration is that the amendments will be made to the Coroners Act 1962 as opposed to the original intention of being contained in new legislation. I should point out that the proposed amendments have been developed with the advice of the Office of the Attorney General. We have also had the benefit of the technical advice from the Legal Aid Board. I believe coroners will also welcome the new provisions.

The new provisions will replace the ad hocarrangement operated by my Department, in consultation with the Office of the Attorney General, under which ex gratiapayments for legal representation may be made in certain cases involving deaths in State custody. At this point, I would have regard to the uncertain nature of possible situations. While it is not possible to be exact as to the likely costs, I would expect that some increase on the cost of the current ad hocarrangements, which have averaged €50,000 per annum in recent years, will arise. The base of the potential number of deaths which might qualify the cost may be in the region of €250,000 annually. This, however, would be considerably less than the cost of establishing dedicated inquiries into deaths at the hands of the State, which will be necessary in the absence of the inquest system in order to meet the State's European Court of Human Rights obligations.

Amendment No. 25 provides for amendments to the Coroners Act 1962. Section 21(a), which is a new section, provides for the amendment of section 29 to provide for certain exemptions to the fees charged by coroners and county registrars for providing copies of documents to certain categories of persons or organisations. This would now include the next of kin granted legal aid. Section 21(b) provides for the insertion of a new section 60 in the Coroners Act 1962 which sets out the circumstances where legal advice and aid at inquests will apply. It provides that where an inquest is to be held into the death of a person in circumstances listed in subsection (5), a member of the family of the deceased may apply to the coroner for a request be submitted by the coroner to the Legal Aid Board for the grant of legal aid or advice of both. The application is to be made before the commencement of the inquest unless the coroner permits otherwise.

Subsection (3) provides that the coroner is required to determine the application within ten working days of the receipt of the application. If the coroner is satisfied that the applicant meets the criteria set out in subsections (5) and (6), he or she shall request the Legal Aid Board to grant legal aid or advice or both to the applicant concerned.

Subsection (5) lists a range of State custodial or certain institutional care situations to which the provision applies. Deaths in these institutions will give rise to an inquest by the coroner. I am also providing to ensure the fullest possible compliance with the European Court of Human Rights for the coroner to consider an application to request the Legal Aid Board to provide legal aid where the circumstances of the death may give rise to a matter of significant public interest where the possible recurrence or continuation of those circumstances could be harmful to public health or safety. Subsection (6) provides that where an applicant has been granted legal aid or advice or both by the Legal Aid Board on foot of subsection (4), no further application will be made by a family member in respect of the inquest concerned. Subsection (7) is an interpretation provision.

Amendment No. 26 provides for mainly technical drafting amendments to the Civil Legal Act 1995 to provide for the inclusion of these new inquest provisions in the legal aid framework and any necessary cross-referencing to the new section 60 of the Coroners Act 1962 to be inserted by this Bill. Amendment No. 4 is consequential on amendment No. 25.