John O'Mahony (Fine Gael)
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I will be very quick. This Commencement matter is on the need for the Minister for Justice and Equality to outline criteria for free legal aid eligibility and the need for reform. I welcome the Minister of State, Deputy Daly, and congratulate him on his appointment. I am a little disappointed that the Minister for Justice and Equality or the Minister of State at the Department of Justice and Equality is not present. I have raised this issue on numerous occasions in the past and nothing has happened.

Since 2009, €428 million has been spent by the State on free criminal legal aid. It cannot be allowed to continue. I fully understand the argument that everybody deserves a fair trial but criminals who have committed multiple crimes have been granted free legal aid on each occasion even though in some cases they have multiple assets. As far as I am concerned, they should be gone after. They rack up an obscene number of convictions, still end up on the streets committing more crimes and get free legal aid on each occasion. What can be done about it? In states in America, when people get three strikes, they are out. In the UK it is means tested and any assets the accused person has are realised as part of it. People should definitely be asked to contribute some of the legal aid costs.

I was reminded of it recently by two cases. When I mention these two cases I am not talking about whether the cases should have been brought. A Deputy in the House, who is on a salary of €87,000, was granted free legal aid because he is taking the industrial wage. He is not giving the remainder back to the State. The State is paying twice in this case. It should not be allowed. There is no contribution made by the said Deputy to his legal aid costs. It is not acceptable. It needs to be addressed. From what I can see, the money that is not being given back to the State is being given to his party, which organises more protests that lead to situations like the one we saw in Jobstown. I am not commenting on that. It has been tried and the justice system has operated totally independently in that case.

We also had a case in respect of white-collar crime.

Denis O'Donovan (Fianna Fail)
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The Senator should be careful not to speak in such a way that the person may be indirectly identified. He will walk us all into hot water so he should be very careful. The principle of what he is saying is fine but I would prefer if he did not identify anyone.

John O'Mahony (Fine Gael)
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I am not commenting on the outcome of the cases.

Denis O'Donovan (Fianna Fail)
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Even though the Senator did not mention a name, the person he is referring will be as obvious as the nose on his face to some people.

John O'Mahony (Fine Gael)
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There was a case recently of a white-collar crime and it was reported in the media last week that the legal aid was three times the normal fee allocated. It was in a case involving Anglo Irish Bank. I think everyone will know what I am talking about. If I have mentioned Deputy Paul Murphy, Seán FitzPatrick can also be mentioned.

Denis O'Donovan (Fianna Fail)
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I would prefer if the Senator did not mention any names. They are not here to defend themselves, so it is unfair.

John O'Mahony (Fine Gael)
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I withdraw it. I am not commenting on the cases at all. I am merely commenting on the fact the State has so many demands on it. Here we have a situation where, in general terms, criminals are being given free legal aid on multiple occasions. In many of those cases they have assets and there does not seem to be any cap. It is time it was addressed.

Jim Daly (Cork South West, Fine Gael)
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I thank the Senator for raising this issue. I acknowledge at the outset he is doing his job as a public representative who is raising the air of disquiet that surrounds the issue.I regret that the Minister for Justice and Equality cannot be present. As the Senator will appreciate, the Cabinet is sitting this morning. It was supposed to sit yesterday but was unable to do so. The Minister of State at the Department of Justice and Equality was not available this morning either. I ask the Senator to accept my apologies and to rest assured that I will convey his legitimate concerns directly to the Minister. I am sure he will receive any further follow-up that may arise.

I have been asked by the Minister, Deputy Flanagan, to respond to this matter as he is unable to attend this morning. As the Senator may be aware, under the Criminal Justice (Legal Aid) Act 1962 and a series of regulations made thereunder, free legal aid may be granted by the court in certain circumstances for the defence of any person of insufficient means in criminal proceedings. An applicant for legal aid must establish to the satisfaction of the court that his or her means are insufficient to enable him or her to pay for legal aid. The court must also be satisfied that by reason of the gravity of the charge or exceptional circumstances, it is essential in the interests of justice that the applicant should have legal aid. Under the 1962 Act, the courts, through the Judiciary, are responsible for the granting of legal aid. The Minister has no function in these matters as they are determined by the Judiciary, which is independent in the exercise of its functions.

The provision of an effective criminal legal aid service to persons facing serious charges that could result in the loss of their liberty is of fundamental importance. The Supreme Court ruling in the case of State (Healy) v. Donoghue 1976, I.R. 325, effectively determined that the right to criminal legal aid is, in circumstances which are quite wide in practice, a constitutional right. An accused person who faces serious changes and who cannot afford to pay for legal representation has a constitutional right to legal aid. In addition, Article 6(3)(c) of the European Convention on Human Rights provides that every person charged with a criminal offence is entitled to defend themselves in person or through legal assistance of their choosing or, if they have insufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

The Minister's Department is preparing a draft general scheme of the criminal justice (legal aid) Bill 2017. The key purpose of the draft legislation, subject to Government approval, is to transfer the administration of the criminal legal aid scheme from the Department to the Legal Aid Board, with the purpose of ensuring that best practice, financial management and control are exercised and to give effect to Government programme commitments on criminal legal aid. The following commitments contained in the programme for Government will be addressed in the general scheme, namely, to transfer responsibility for the operation of criminal legal aid from the Department to the Legal Aid Board, to introduce a contribution system, to introduce more rigorous and effective means testing and to provide for increased sanctions for false declarations.

John O'Mahony (Fine Gael)
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I thank the Minister of State. I welcome the last part of his answer, which states that the new Bill will address the contribution system. This is a matter I have raised, along with means testing and increased sanctions for false declarations. By all means, it should be given if the accused is totally penniless or whatever. However, it should not be given in many cases. I look forward to the publication of the general scheme.

Jim Daly (Cork South West, Fine Gael)
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I thank the Senator. I have listened carefully to what he has said. The criminal legal aid scheme has been in operation for just over 50 years and is instrumental in enabling the State to meet its legal obligations including rights-based requirements under the European Convention on Human Rights, ECHR, to ensure access to justice and fair hearings and trials. The State dedicates significant resources to detecting crime and in prosecutions. We must be conscious also of the need to ensure the right to a defence. The proposed legislation is intended to uphold that right.

The long-standing criteria set in law, which are also reflected in international criminal justice systems and conventions, will be retained in the reforms, namely, the granting of criminal legal aid on grounds of the interests of justice and the financial circumstances of the applicant. Issues of control and eligibility need to be addressed in the general context of criminal legal aid governance. These concerns are reflected in the Government programme and it is proposed that the legislation will provide for more rigorous assessment of eligibility, contributions by those who can afford them and a system to allow a review of the financial circumstances of those who have received aid. The objective is to reduce the scope for any abuse and ensure that funds under the criminal legal aid scheme are directed towards those who need them. The scheme will also provide for increased sanctions for false declarations and other abuses. The Minister intends to bring the matter to the Government for its approval later this year.