Hildegarde Naughton (Galway West, Fine Gael) | Oireachtas source

I thank the Senators who have contributed to this debate. I also thank Senators Boylan, Ó Donnghaile, Warfield and Gavan for bringing forward this Private Members' Bill, which deals with an important aspect of the civil legal aid process. I am pleased that the Government, during its meeting last Friday, approved the Minister for Justice's proposal not to oppose the Bill on Second Stage.Civil legal aid helps people of insufficient means with legal representation to resolve their civil and family disputes. I am sure Senators are aware that civil legal aid in Ireland was introduced in December 1979, as has been stated by colleagues, by way of a non-statutory scheme. This made provision for a financial assessment based upon disposable income and disposable capital thresholds. It also introduced the payment of contributions for legal advice and legal aid.

The current civil legal aid and advice scheme was launched by the Government in 1980, following the report of the Pringle committee and the judgment in the European Court of Human Rights, ECHR, case taken by Ms Airey. The Legal Aid Board was established to manage the scheme, initially on an administrative basis. The board had and still has a particular, although not exclusive, focus on providing legal aid in family law cases.

The non-statutory scheme was placed on a statutory footing by the Civil Legal Aid Act 1995 and the financial eligibility criteria under the Act were set out in the Civil Legal Aid Regulations 1996, made by the Minister under section 37 of the Act, Sl 273 of 1996. Some amendments have, over the period, since been made to these regulations, and Senators will be aware, most recently just this month, in the context of representation for the Stardust victims' families.

Civil legal aid and advice as provided by the Legal Aid Board under the 1995 Act and the regulations are perhaps among the most critical of the services provided by the State that facilitate access to justice. It can arise at clearly difficult moments in the lives of our citizens. In challenging situations where persons are not in a position to afford to pay for legal representation, it is essential that access to justice is enabled where it is merited. As we know, in particular, the board's provision of legal advice and representation, as well as more recently, its role in the family mediation service, play an important part in resolving family disputes.

The service is a vital one, as I am sure Senators agree, and it is important to ensure that it does not operate in any unintended way for those seeking access to justice. It is an area too that continues to develop. A good example of this is the Government response to last year's O'Malley report, which will see the relevant law being expanded in the area of legal aid and advice in respect of some areas concerning sexual offences and domestic violence. As Senators will be aware, generally speaking a means test in respect of applications will apply and there is a system of allowances, and other considerations that apply in the calculation of entitlement.

That brings us to the specific detail of today's Bill. The Bill that the Senators have tabled is in effect a one section Bill which provides for the amendment of section 37 of the Civil Legal Aid Act 1995. Looking at section 37, it provides that the Minister may make such regulations as are necessary for the purpose of giving effect to the Act. Section 37(2) provides that regulations under this section may make provision for various matters including, in paragraph (c):

For the assessment by the Board or its staff of the means, income, disposable income, capital and disposable capital of applicants, the contributions payable by applicants, the waiving of contributions and the acceptance of lower contributions from applicants.

Today's Bill amends section 37(2) by the substitution of the following for paragraph (c):

(c) make provision for the assessment by the Board or its staff of the means, income, disposable income, capital and disposable capital of applicants, the contributions payable by applicants, the waiving of contributions and the acceptance of lower contributions by applicants; excluding the value of free or partly free board;

The effect of the Bill therefore revolves around the added element - "excluding the value of free or partly free board". This appears to be a reference to the matters addressed in regulation 15(1)(e) of the Civil Legal Aid Regulations, as amended, 1996-2021. Regulation 15(1)(e) provides that income includes: "the value of other benefits or privileges including the value of free or partly free board".

The Bill therefore appears to have the intention of excluding "the value of free or partly free board" from the assessment of income. To the extent that this is a factor therefore in the determination by the Legal Aid Board of the income of an applicant for legal aid, the amendment would appear to require the board to exclude from the calculation of eligibility, sums that relate to or arise from the "value of free or partly free board". The explanatory memorandum which accompanies the Bill makes a specific reference to applicants in receipt of the housing assistance payment. My understanding of the views of the Senators is that the interpretation of the regulations with regard to "free and partly free board" has resulted in some low income applicants being denied civil legal aid. This is of concern. Senators have also noted that the situation causes particular problems for applicants whose landlords receive housing assistance payment and which, Senators have noted, has been treated as income by the Legal Aid Board.

In passing, I would have some concern that the full implications of the measure proposed by the Senators may not be completely foreseeable on the face of it. There may be other implications. It may, for example, be entirely legitimate and indeed necessary to take account of an accommodation arrangement, that is board or part board, that is offered in an employment or remuneration context. As I have said however, while the full implications of the proposed amendment may not be entirely apparent, there is no intention to oppose the matter in the House this evening.

I have been informed by the Legal Aid Board that it has decided with immediate effect that the housing assistance payment, HAP, will be excluded from the calculation of entitlement to legal aid. It is reissuing its guidance to staff to this effect so that the HAP payment and indeed any other social housing support payments should no longer be treated as income for the purpose of the financial eligibility test. I understand that the matter has been communicated to the board's stakeholder panel. It is also important to state that it is the responsibility of the board to determine the specifics of financial eligibility and I welcome its decision which, to answer Senator Gallagher's question, will take immediate effect. This approach can be given effect in the context of the regulations as they are currently framed, and indeed in the context of the Act, as framed.

It might be noted that the Legal Aid Board is reviewing its submissions to the Minister with a view to submitting further proposals on the matter of financial eligibility, which will, I understand, reflect the board's position, as stated, on the exclusion of social housing supports. Any such proposal on the regulations will be assessed by the Department and legal advice will be sought, and any changes deemed necessary will be brought forward. I can inform Senators that, as part of the Minister's justice action plan 2021, a comprehensive review of the civil legal aid scheme will be commenced by her Department later this year. This is something that the Legal Aid Board and other organisations, such as the Free Legal Advice Centres, FLAC, have called for and support. The scoping of the proposed review is under way and under the justice action plan the review will commence in the third quarter of 2021. Senator Gallagher raised issues around, for example, the threshold for eligibility and awareness around access to the scheme. All of these issues can be factored into the review.

It is over 40 years since the first civil legal aid scheme was launched in Ireland and it is over 25 years since the scheme was placed on a statutory footing following the enactment of the Civil Legal Aid Act 1995. The Legal Aid Board and the civil legal aid scheme have worked well to provide a necessary service to those of limited means, and in particular to those who have experienced family law problems over that period. Demands on the civil legal aid scheme have grown and in order to provide maximum benefit to those it was established to serve, a review of the scheme is appropriate, not least in light of societal change in Ireland over recent years. I note that calls for such a review have been made by senior members of the Judiciary, academic commentators, non-governmental agencies and, in the past year, by the Oireachtas Committee on Justice.

We must aim to ensure that those in most need and whose means are insufficient can continue to avail of the civil legal aid scheme, consistent with the principles of access to justice. While the terms of reference for the review are in the process of being finalised, I envisage this being a consultative process, which among other things will capture the insights of those from the non-governmental sector who interface with the civil legal aid scheme and its clients.

Among the topics the review is likely to consider are the criteria for eligibility for civil legal aid, and this is at the core of the business before us today in the House. In this context, changes to the regulations that have been proposed by the Legal Aid Board will be considered as part of this review, including matters that touch on financial eligibility. If it is to transpire from that review that the regulations require to be amended to address any perceived deficiency, then the regulations will be addressed. It is more than likely that the statutory parameters relating to eligibility questions are adequate and it is a function of the regulations to specify the detail around income, allowances and other matters. However, I am not ruling any necessary change out as a result of the review.

The review will take account of the significant role of the civil legal aid scheme in providing access to justice for litigants involved in family law proceedings from its establishment and having regard to the programme for Government commitment to, "Enact a Family Court Bill to create a new dedicated Family Court within the existing court structure and provide for court procedures that support a less adversarial resolution of disputes."Recently there have been calls for changes to the accessibility criteria, particularly the means threshold. These calls have come not only from the Legal Aid Board but also, inter alia, from members of the Judiciary, including the Chief Justice who has, on a number of occasions, suggested that there is a very powerful argument for reviewing the income thresholds for access to civil legal aid. The Oireachtas Joint Committee on Justice and Equality, in its Report on Reform of the Family Law System in October 2019, called for a full review of the legal aid scheme to be conducted, with particular regard to be given to means test rates, contribution requirements and eligibility in order to ensure the scheme is meeting the needs of those most vulnerable in society. The joint committee's report suggested that the current threshold for legal aid needed to be raised significantly.

Members will also be aware of a recent session of the Joint Committee on Justice and Equality which looked at the area of access to justice and legal costs. This provided an opportunity for a number of those making calls for reform to present their views and highlight areas they consider should be included within the statutory scheme of legal aid. Contributions to these hearings were made by public sector bodies, representative bodies and NGOs. The contributions to the debate also raise issues that the contributors believe should be examined in terms of the delivery of legal aid in the State and point to emerging areas of litigation. It can be expected that the review should map out a future for the civil legal aid scheme, which in my view is one which will provide for a flexible service that has, as far as possible, the capacity and resources to respond to the priority legal assistance needs of those of insufficient means.

As I indicated, it has been decided by the Government not to oppose the Civil Legal Aid (Exclusion of Value of Free or Partly Free Board) (Amendment) Bill 2021, which is before the Seanad today. I repeat that the issue that would appear to have given rise to its introduction has been addressed by the Legal Aid Board. As I indicated, new guidance is issuing to ensure the housing assistance payment will not be included in the calculation of an applicant's eligibility for the board's legal services. I very much welcome this development as a significant step in ensuring that this very important point of access to justice is maintained to the benefit of those in need of the relevant supports.

The Legal Aid Board has indicated that it will examine the record to look at who had been refused on the basis of the inclusion of the housing assistance payment. It is also open to any person to reapply for civil legal aid. I will ask the Department to raise specifically with the Legal Aid Board the issue of those who have missed out.