Seanad debates

Monday, 31 May 2021

Civil Legal Aid (Exclusion of Value of Free or Partly Free Board) (Amendment) Bill 2021: Second Stage


10:30 am

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move: "That the Bill be now read a Second Time."

I commend Senator Lynn Boylan on bringing forward this important Bill. She has been a constant champion for social justice and equality, whether through her lifelong activism, her contribution on behalf of Dubliners in the European Parliament - where she led the negotiations in respect of the right to water report - relentlessly campaigning to end the incarceration of Ibrahim Halawa in the Egypt, persistently challenging the Irish Government on the lack of media diversity in this country or her work on social change and for the Stardust families and victims who lost their lives in that tragedy in 1981.

The purpose of the Bill is to remove the discriminatory policy of treating the housing assistance payment, HAP, as income in the context of applications for civil legal aid. Survivors of domestic abuse should have fair access to civil legal aid. This is a deeply unfair provision. HAP is paid directly to landlords. As matters stand, however, it is considered to be part of a person's income when he or she is assessed for civil legal aid eligibility. This denies survivors of domestic abuse and other low income households access to the courts. This is wrong and dangerous, and should be stopped. It creates a shocking situation whereby survivors of domestic abuse may have to represent themselves in court when hearings may concern child custody or child maintenance.

The way in which civil legal aid is calculated unfairly penalises HAP recipients. HAP is paid directly to landlords and is not income. However, the legal aid board is interpreting HAP as benefit-in-kind and that it is partially free board. The value of the benefit-in-kind is the HAP payment. This can tip victims of domestic abuse over the already very low income threshold of €18,000. This means that people on low incomes are left to defend themselves in court in cases relating to maintenance, child access, separation and divorce. It is unfair to expect an untrained person to represent himself or herself in the courts and is a contravention of the Airey v. Ireland ruling. It effectively denies such persons access to the courts. Senator Boylan's Bill addresses this anomaly by excluding the reference to partially free board so that HAP payments will not be included in the means test for civil legal aid. I welcome the Government U-turn on the issue. Let us be clear, survivors need certainty and what Sinn Féin proposes to do is pursue this Bill to ensure that the Minister is not the sole person who has the discretion to count or not count HAP as income in this scenario.

Photo of Lynn BoylanLynn Boylan (Sinn Fein)
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I thank my colleague for saving the day. I think everybody in this country would agree that the civil legal aid system is in drastic need of reform. It is not just the issue we are discussing today. It is under resourced and restrictive. There are delays of up to 42 days, according to the Free Legal Advice Centres, FLAC. Access to justice is a fundamental human right and is recognised as such under a range of regional and international instruments, including the European Convention on Human Rights and the EU Charter of Fundamental Rights.

Equal access to justice means that everyone should have equal access to the courts as a matter of law and as an element of social inclusion and cohesion. Those who have rights must have a way of enforcing them that is effective and meaningful. Therefore, it is acceptable that the right to legal aid is available. After all, following on from the Airey v.Ireland judgment, the Civil Legal Aid Act was put in place to give effect to the finding of the court that it is unreasonable to expect somebody who is untrained to represent himself or herself in court.

While I am aware that there is a review under way by the Department of Justice into the entire civil legal aid scheme - we could spend hours debating how we could make a civil legal aid scheme fit for purpose - I was motivated to draft this Bill and bring it forward out of sheer frustration at the lack of willingness on the part of the Government to address the very discriminatory interpretation of the legal aid regulations. Assessing HAP is income when accessing civil legal aid is deeply mean-spirited. As everyone knows, HAP is paid directly to landlords and tenants never receive the money.

In order to be eligible for HAP, a person has to meet the financial eligibility criteria for a local authority housing. However, given the mismanagement of housing by successive Governments, there is a chronic shortage of public housing. The Government has instead outsourced its housing responsibilities to the private sector. As and from 24 May, there were 61,716 HAP households and a further 12,159 homeless HAP households. HAP is no substitute for secure tenure and many who are renting in HAP properties are supplementing the payment because the caps are not in line with market rates. This inevitably means that HAP tenants are getting by on very low household incomes. However, when they find themselves in need of civil legal aid in the family courts, they are being discriminated against.

In response to a parliamentary question in July last year the then Minister for Justice, Deputy McEntee, said that taking into account the regulations, and in the absence of any provision specifically excluding housing assistance payment as income, the Legal Aid Board is required to take HAP into account as a form of income. In a follow-up response in September, she went further and specifically referenced section 15(1)(e) of the regulations. This section refers to free or partially free board being classed as a benefit-in-kind and the Legal Aid Board has interpreted HAP as the monetary value of that benefit-in-kind.In February, I raised this issue again as a Commencement matter. I pointed out how it was disproportionately impacting on women and survivors of domestic violence. On that occasion, the Minister said the matter was subject to a judicial review and, therefore, it would be inappropriate to comment further. I find it quite telling that two days ahead of a Sinn Féin Private Members' Bill being debated, and following a Cabinet meeting, the Legal Aid Board was instructed by the Minister of State, Deputy Naughton, to issue updated guidelines to its external consultative panel. The memo states there is now an alternative interpretation of the regulations available that allows the board to disregard all State housing support payments, including HAP. The memo also states the board will now seek to identify recent applicants who have been affected and will encourage them to make a fresh application.

On news of these amended guidelines, I was able to contact some of the women who have been directly impacted by the callous interpretation of HAP as income and I can tell the Minister of State that the relief was palpable. Call me cynical but how is it that for a full year we had been told that without a change to the regulations nothing could be done? Why is it that as recently as February the Minister said nothing could be done until the judicial review was completed? It should not have to take a Private Members' Bill from me for the Government to have a Damascene conversion. We are now told that not only do we not have to wait for the judicial review to conclude but that a change to the regulations is not even necessary. All that was needed was an update to the guidelines. Politics is about choices and I cannot help but conclude the Minister was choosing not to issue legal aid to some of the most vulnerable people and that the Legal Aid Board was choosing to interpret HAP as a benefit-in-kind to save on what is a stretched budget.

While I absolutely welcome the U-turn by the Government and the updated guidelines issued by the Legal Aid Board, I can tell the Minister of State that a lot of women slept easier knowing they would not be forced to represent themselves in court. These are women who had fled domestic violence situations and found a new home for themselves and their children but when they tried to build a new life by seeking maintenance, separation or access they were told by the Legal Aid Board they would have to face their abusers in court by themselves.

While it disproportionately did impact on women, men were also impacted by this interpretation of HAP. Men who had to fight through the courts to be accepted for HAP to gain overnight access to their children found they had to defend themselves in court. Only today, the ESRI issued a report stating the breakdown of family relationships is one of the key triggers for pushing children into poverty. For the past number of years, this interpretation of HAP as income has led to deepening and worsening relationships within families. It has pushed women to loan sharks. It has further abused survivors of domestic violence.

I welcome the U-turn but I also ask the Minister of State what she will do to ensure all those who have been impacted to date by this decision will be notified. What will she do to ensure they will have their legal aid cases expedited? What will we do to review the impact this has had? One of the women I spoke to was at real risk of losing custody of her child and she was terrified about going in and representing herself in court. Will the Department conduct a review to assess the impact the interpretation in place until Friday has had on those very vulnerable households?

Photo of Lorraine Clifford-LeeLorraine Clifford-Lee (Fianna Fail)
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I am here as somebody who has very good knowledge of the civil legal aid scheme. For many years, I was a solicitor on the private practitioner panel and the pilot childcare scheme. I spent my days in the family court working for legal aid clients and very vulnerable families. I know very well the people who have had to go through the civil legal aid system and the challenges they have been facing for a long number of years. When I was a member of the justice committee I raised the issues surrounding civil legal aid scheme at every opportunity I got. There are many issues and we will not discuss all of them this evening. I very much welcome the decision by the Government to review the civil legal aid scheme. It is long overdue.

The civil legal aid system was founded in 1979 by the then Minister, Gerry Collins, a member of Fianna Fáil, to give people access to justice and to allow people in particularly vulnerable positions access to justice. I am very proud to have served a long number of years on the civil legal aid panel and to have worked with people who otherwise would not have had access to justice. The scheme needs to be better resourced. I hope the Minister of State will have a full review of the scheme. It needs better resources and more training for the legal aid solicitors and barristers. It will not be popular to say this but it also needs a better fee structure for the people on the private practitioner panel. We are speaking about very low fees being paid to the legal aid solicitors and barristers, which then impacts on the clients' access to justice because of the limited number of people willing to put themselves on the panel. We need a full review. We need a proper, robust, modern-day fit-for-purpose civil legal aid scheme.

The issue outlined by Senator Boylan and her colleague on HAP being interpreted as income is something I raised in the Chamber a number of months ago. I am glad to see this anomaly is being fixed. People who are accessing the family courts are in a vulnerable position, and those on low incomes are particularly vulnerable when accessing justice. It is an issue I have raised as a member of the justice committee, particularly with regard to women in coercive controlling situations who might be above the financial threshold but in reality might not have any access to money. It has been very difficult for them to access civil legal aid. People need to make a €50 contribution to their legal aid certificate. I had a client who literally squirrelled away 20 cent, 50 cent and a euro here and there so she could eventually save up the €50 for her legal aid certificate so she would be legally represented in court when applying for a barring order. The legal aid board guaranteed me a number of years ago that a waiver is always given. When people in domestic violence situations apply for legal aid a waiver is always given, no matter what their income, if people state they cannot afford the €50. There should have been a different interpretation of HAP with regard to this waiver. I am very glad this has been rectified and I look forward to a very comprehensive review in the action plan.

The commitment to justice and a fair society of the Legal Aid Board and those people employed by it is second to none. I was disappointed when Senator Boylan said the Legal Aid Board was choosing to interpret the regulation so it could save on its budget. I do not think anybody in the Legal Aid Board would have ever chosen to interpret anything to deny anybody access to justice. The 42 week delay is with regard to wider family law. Those divorcing or separating who are accessing legal aid and whose matter is in the District Court are given a certificate to go to the private practitioner panel so there is no delay. However, there are barriers to access to justice and we really need them to be reviewed. It is primarily women who are at the receiving end of this.

A full review involving everybody involved and all the stakeholders is needed. I look forward to discussing the review with the Minister of State. As I have said, I have a long number of years' experience. I am very fortunate to have represented many people from varying backgrounds and varying experiences, including harrowing experiences. We are speaking about custody, access and guardianship, which are the very fundamentals of people's lives.If those aspects are not dealt with by professionals, deep fractures and divisions can evolve in families and those experiences have an impact on children for the rest of their lives. We must ensure access for everybody in these types of situations to representation and to professionals who can calm nerves, allay fears and come up with the best working solutions for those families. I welcome this debate and the action from the Department of Justice and I also welcome a further debate on the civil legal aid system.

Photo of Barry WardBarry Ward (Fine Gael)
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I also welcome the Bill, which addresses an important point. The idea that any legal aid scheme would take into account income which is not really in the possession of an individual is wrong and it is right that we should act to correct that situation. I welcome the intervention of the Minister of State, Deputy Naughton, in this regard. It is important that we recognise that civil legal aid provision should be a reflection of people's disposable income, as it is in the context of criminal legal aid, for example. This Bill deals specifically with civil legal aid but the model used for criminal legal aid might also be a good one for assessing how we should administer civil legal aid.

I agree with Senator Clifford-Lee in not thinking that anyone in the Legal Aid Board is setting out to exclude any individual or category of people. The people there are obliged to work within the rules. For a long time, we have not been proactive in respect of putting civil legal aid in place and ensuring that it serves the people it is supposed to serve. Reference was made already in this discussion to many of the most dire cases where people need civil legal aid, such as those in the areas of childcare or child protection or both and barring and protection orders that one spouse might take out against another. In the latter situation, it is invariably a woman taking out an order against an abusive husband or partner. Those are the worst cases but a whole panoply of cases is covered by civil legal aid.

This includes the case of a lady I have been working with in my area. She hired a builder who destroyed the part of the house he was working on. That lady needs to sue the builder to recover the money to fix the mistakes he made, and we have been trying now for the best part of a year to get an assignment of civil legal aid. It has come now, but waiting so long has been stressful for that woman because the clock has been ticking on the Statute of Limitations regarding taking a civil action against the builder concerned. It is wrong that the process should take that long. However, that stems from an issue with resources. I do not think someone is sitting in the Legal Aid Board deciding to delay civil legal aid as long as possible in the hope that the woman in the example I referred to will just go away. I do not for a moment think that is happening.

The reality is that this concerns an issue with resources, and this applies to all legal aid. I do not level this charge against anyone in this Chamber but it is often politically expedient to criticise legal aid schemes because people see it as a payment to lawyers. Senator Clifford-Lee raised this issue as well. The reality is that anybody working as a lawyer in the context of payments from a legal aid scheme, civil or criminal, is paid the lowest fees available to any lawyer in the country. Therefore, many people choose not to be involved in that kind of work. They choose not to do work which is paid for by legal aid because of the low pay rates, delays etc. and that obviously has a knock-on effect on the level and availability of representation for people who have to operate under the legal aid scheme. It is a point that must also be addressed.

I note, for example, that I received correspondence from the Bar of Ireland recently regarding the restoration of fees for criminal barristers under that legal aid scheme. Those barristers had their fees cut, as all public servants and public workers did at the time of the financial crash more than a decade ago. However, those fees have never been restored and the barristers concerned are still working on rates dating back to the early 2000s. That will discourage more and more lawyers from getting involved in that type of law. Therefore, if we want a properly functional system in civil or criminal legal aid, we must pay lawyers at the level which makes such work viable for them. That would encourage young people, especially, coming into the legal professions, whether as solicitors or barristers, to get into that kind of work and to serve the very people who need to be served by lawyers. I know the Minister of State will take that aspect into account.

I support what the proposers of this Bill are stating about the fundamental nature of the need for people to be represented in court by professionals who know what they are doing and who know the legal landscape. I state that because it is a tremendously intimidating experience for anybody who is not used to it to go into a courtroom, deal with the formality of the proceedings, no matter how accommodating a judge might be, and face a legal issue and argument in such a court setting. It is only right and proper that people in that situation would have the benefit of professional help from people who understand what they are doing and know the landscape of the legal environment, because it will be the first time for many people to be in a courtroom. They will not be familiar with the language, the room, where to sit, when to stand and all of that kind of thing. Having the benefit of someone there to fight your corner is tremendously important and that is what the solicitors and barristers of this country are there for. It is, therefore, right and proper that we as a society pay for that provision and put those people in place to represent the members of our society needing such support.

This is an important Bill. I do not deny that point. My understanding is that the intervention of the Minister of State means that, to a great degree, what this Bill seeks to achieve is now already in train. I hope that will happen quickly. One point I will make, and I have already compared the civil and legal aid systems, is that it is a matter of course in the criminal legal aid system. In the context of our international human rights obligations, for example, everybody is entitled to access to justice and legal aid is a fundamental part of that. Criminal legal aid is assigned by a judge, however, and that circumvents the bureaucratic nature of the process of having to go to the Legal Aid Board. I say that without making any criticism of that board. The reality, though, is that people in this space, regardless of whether they are receiving housing assistance payment, HAP, or whether the process is speedy, face a bureaucratic mountain that must be climbed. We must reduce that to just a hill or even a speed bump, instead of something that will in any way substantively interrupt the opportunities for those concerned to get professional assistance and to put their best foot forward in the courtroom.

Photo of Victor BoyhanVictor Boyhan (Independent)
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I thank Senator Boylan and Sinn Féin for bringing this important Bill to the House. We heard from Senator Boylan about the litany of excuses and inconsistencies from the Government in responses to parliamentary questions, Commencement matters, dialogue, conversations and correspondence on this issue. One must therefore ask why that has now changed? This Bill has undoubtedly been significant in that regard and it has focused people's minds. I acknowledge and give credit for that accomplishment. Far too often, we come into these Houses and the prevailing arithmetic means the numbers are clearly stacked against the Opposition. However, the Opposition is not here simply to oppose. Its function is to also shine a light into a few dark spaces. The Opposition's job is to challenge the status quoand to question and hold to account all public representatives. That is an important aspect of the Opposition's role, and in that context I thank Senator Boylan for highlighting this issue.

In principle, this Bill is concerned with excluding HAP payments from means tests for the provision of civil legal aid. That is the kernel of the legislation. I welcome the wider debate as well, and Senator Clifford-Lee spoke in detail and demonstrated her great personal knowledge and in-depth experience of this area when discussing how the civil legal aid scheme must be reformed. We must never deny or frustrate people's ability to access justice. It is an important point and people must be afforded the opportunity to seek legal remedy and justice. However, it is also important, and I do not want to labour this point too much, to recognise that a litany of excuses has been given in this regard. If people can keep getting away with that, they will keep doing it. Therefore, they have to be challenged and that is important.

My understanding is that all this Bill does is to change five lines in the Civil Legal Aid Act 1995. I am not belittling all the wonderful work done by Senator Boylan. When we sit down and tease out this legislation though, that is what it does. That is not a lot but it is profound. It is a small but important step and this is a change that must be made. I understand that the Government has instructed the Legal Aid Board to reform the eligibility criteria for civil legal aid and that is an important development. It must be acknowledged and welcomed, albeit it is late.

There must be reform of the anomalies of the civil legal aid eligibility criteria, which are unfair and penalise people who receive housing assistance payments. An important point was made earlier that is worth reiterating, which is that HAP is paid to the landlord, not to the tenant. It is another crucial point to remember. There are anomalies and unfair provisions in the scheme and those have had an impact on survivors of abuse, male and female, in particular and on many other people. Nothing is more stifling and worse than people who have been abused and are now seeking legal remedy and access to justice through the courts being denied that outcome.I welcome the change of heart by the Government on this important issue. It is a first step but it cannot be allowed to sit. We cannot just clap ourselves on the back and say "well done"; we must see it through all the way. I hope the Minister of State will outline her commitments in that regard.

I commend Senator Boylan, who has been to the fore on this issue. She has campaigned to highlight the importance of this issue vis-à-visfree legal aid. I hope we will have a further debate on this as well as a total review of the scheme. The latter is warranted and must be done. Again, I thank the Minister of State and the Government for the change of heart on this Private Member's Bill.

Photo of Marie SherlockMarie Sherlock (Labour)
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I welcome the Minister of State. I warmly welcome this Bill and acknowledge and pay tribute to the enormous work Senator Boylan undertook to bring it to this point. She has detailed the very many communications and efforts over the past year and longer to try to get the Government to move on this. I welcome the fact that the Government is now moving on it, albeit belatedly. Following on from its commitment to support this Bill tonight, the Government must work to enact it as soon as possible because for as long as Senator Boylan has been raising these issues, women and families in very vulnerable situations have been left with no representation at all. They have been waiting for barring orders, maintenance orders, resolutions to their custody disputes and many other matters for which they needed civil legal aid. It should not have taken this long but I welcome the fact that the Government has eventually moved.

The Bill amends the principal Act to exclude free or partly free board in the consideration of eligibility for free civil legal aid. That sounds very archaic but the reality is that the State is paying rent directly to landlords through HAP to put a roof over the heads of thousands of families and individuals. It really is extraordinary that HAP was ever considered to be income. When one thinks of income, one thinks of the money one has to earn to pay for the things one needs in life. Some of us are fortunate enough to have discretion or control over the remainder of our income but there is no discretion or autonomy with HAP. Many of us in this House are dealing, day in and day out, with families in north Dublin who have €1,912 to spend on rent but who still cannot find appropriate housing. There is certainly no discretion or autonomy with regard to HAP.

I have spoken to lawyers who represent people in civil legal cases and since being elected to the Seanad, I have been contacted by many people in very difficult situations. I have been struck by how difficult it is to overstate the importance of civil legal aid to individuals and families in terms of the vindication of their rights, particularly in the context of domestic violence, marital breakdown or family law issues.

This Bill is a small but very significant step forward in the context of much broader reform. The Government is committed to reforming the entire civil legal aid system. Not only do we have problems with the means test, there are also considerable delays in the system. Reference has been made here to delays of varying lengths but in 2020 FLAC said that there were delays of up to 58 weeks in the system. People are waiting for over a year to access legal representation, which is horrendous. It is absolutely horrendous to think that people would be left in limbo for that length of time.

I also look forward to a broader debate in this House on reform of the civil legal aid system. At the moment it is very limited and it should be extended. I think particularly of workers in the context of cases of sexual and other harassment in the workplace and the lack of representation for them if they have to go to the Workplace Relations Commission or of parents trying to vindicate the rights of their child to access special needs education.

This Bill is extremely welcome. I congratulate Sinn Féin and Senator Boylan for bringing it before the House. The clear message from this Chamber is that this Bill must be enacted as soon as possible because we can no longer have a situation where vulnerable individuals who need to access civil legal aid are excluded.

Photo of Vincent P MartinVincent P Martin (Green Party)
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I welcome the Minister of State to the Chamber and commend Sinn Féin on introducing this Bill. It is self-explanatory and its proponent makes a very compelling argument. Indeed, supporting it is irresistible. Sinn Féin is in opposition but this is a good example of how Opposition works.

The Bill invites us to consider the bigger question of whether people are equal before the law. We have a constitutional right to be treated equally before the law and every citizen in Ireland is treated thus. The next question is whether people have equal access to the courts and in my experience, having been a practising barrister for well over 20 years, the answer is definitely "No". The courts are, by and large, for the very well off or, in certain cases, the extremely less well off. The costs are exorbitant and the majority of people in the middle could not afford to put one foot in the Four Courts without thinking long and hard about it first. There is not equal access to the courts in Ireland and we should make that perfectly clear.

This initiative by Sinn Féin is a small step in the right direction and should be fully commended. The Government has taken a very pragmatic view of things and has recognised that this is a good Bill and I commend it for that. However, I would love to see more ambition from this House. We are sorting out one dreadful anomaly in the system whereby HAP was regarded as part of disposable income. I am so pleased that this will be rectified and find it hard to believe that this change would not be happening were it not for the timely intervention of the Bill before us. This shows that politics is working, albeit on a small scale. We must unreservedly welcome this initiative.

There is no equal access to the law in this country. In terms of education, law is not even on the curriculum in this country so people are unaware of the careers of barristers and solicitors. The acoustics in court mean that it is often impossible for people to hear what is going on. The language of the courts is archaic. Some people choose to represent themselves, giving rise to the phrase that they "have a fool for a client". Often massive issues are at stake and people are going into court, representing themselves. When I founded New Beginnings more than a decade ago, people were about to lose their homes. At that point, there was no civil legal aid scheme that covered them but now we have a personal insolvency regime on a statutory footing. We also have Abhaile, which is very good and a step in the right direction.

What happens if people have been defamed and their reputation has been destroyed? If they are not rich, they cannot go to court unless they meet lawyers who are willing to get stuck into the case, potentially for years, without getting paid.That is due to the time-honoured pro bonotradition of the Bar, where lawyers have filled the gap, albeit in an admittedly arbitrary way. They cannot catch every case and save everyone. They invest months in a case and if they bring it home, they get the costs. If they do not win the case but it is a matter of much public significance, there is a chance of getting costs from the court.

A case involving a slip or fall in a supermarket or a road traffic accident would need a person to be a very good communicator so as to sell the case to the solicitor if he or she cannot afford to pay for it. That person would have to hope or pray that the case would be taken. If it is a 50:50 case, the solicitor might have to make a business decision and may not be able to risk it if resources do not support it. If it involves a family asset or custody of children, it is a really tough one for lawyers. I know they all do their best but there may be no asset to distribute after a divorce. Such cohorts may have no voice and the most vulnerable are exposed.

We should really have a more fundamental debate about the barrister profession. I know it has changed but these professionals may not get paid for years. It attracts a certain type of person that would be utterly resilient, preferably unmarried and with no loans, or else somebody with a very well-off relative or parent in the background to support him or her during many impecunious and challenging times in the early years of practising at the Bar. Solicitors may not be as badly off as they can get a salary straight away. Barristers may starve for years trying to make it.

I would love to see a greater socio-economic mix of all types in the Law Library. It is slowly but surely going in the right direction. The judges would then reflect Ireland in a better way in having experience on the front line. Judges, by and large, have done a very good job but many of those judges might not know what it is like not to have any food in the fridge, let alone a fridge in the house. It is very hard for them, although they do a brilliant job, if they do not have direct empathy. They have sympathy nonetheless.

There is much more we can do and Sinn Féin has taken a very pragmatic step on which it deserves to be commended. I hope there is more to follow and there will be much more co-operation between the Opposition and the Government to make the system more equal for everyone. It is about reflecting what is enshrined in the Constitution, which is that everyone is equal before the law. Unfortunately, that is not the case now.

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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I listened to the comments about diversity in the law and my colleague, Senator Ruane, has been pushing work in that area. It is a piece that is needed.

I welcome the Minister of State to the House and commend Senator Boylan on what is a very important Bill and what has already been very consequential legislation. The existence of the Bill seems to have led to a change in policy being expedited, which will have a major impact on people's lives. This Bill falls within a set of measures in the House where the Seanad has had a particular role in highlighting real impact in the area of intimate partner violence, domestic abuse and rights in those cases. The Seanad pressed forward, demanding on a cross-party basis that coercive control be recognised as an offence. When the mediation legislation was going through this House, it was Senator Ruane and I who pressed for recognition that mediation was not always the appropriate route, with a civil legal route often being more appropriate in cases where there were imbalances of power and history of domestic abuse in all its different forms. There have been a number of provisions in the area and this piece will go down as another really important building block in attempts to make our legal system fit for purpose and the realities of people's lives and experiences.

I am glad different guidance has been recommended but it is important that the Bill would go forward. It is important, where possible, to copper-fasten legislation to make clear what may or may not be interpreted in terms of calculation of means. There has been an anomaly where a house in which a person lives, for example, might not be counted as an asset but the housing assistance payment may be seen as income. Again, that leaves people in different categories with different capacity in being able to seek civil and legal aid.

We know there is insecurity around housing in Ireland and this has been such a contributing factor to people not feeling able to leave positions where they experience abuse or danger. We know people have been turned away from domestic violence shelters because Ireland has not fulfilled its obligations under the Istanbul convention. It has been a contributing factor in the decisions that people have had to make. It certainly should not be the case that those getting a housing assistance payment must be concerned that the fact they are securing housing for themselves and perhaps dependant children, etc., may be stopping them from accessing the civil legal aid they need in order to create long-term security and potentially achieve long-term protection for themselves and their children. People should not be pressed into those short-term to long-term choices.

There is mention of 42 weeks and 58 weeks, depending on the source we use, in the delays in civil legal aid that have been highlighted again in this debate. That creates danger in people making choices that are not the best for them. They are the choices they are forced to make because these people are caught between short-term security and short-term consequences being visited on them because they cannot access what would be their legal rights.

The Minister of State has mentioned there will be a review of civil legal aid. We need that review but we also know we need more resources. I urge that even prior to the review, more resources should be allocated so that in the review we can address systemic problems; if they arise because of resources, they can be addressed. That will allow us to pull out what are systemic issues and what are resource gap issues. There are examples of both and a number of areas must be addressed. I also have concerns relating to section 32 assessments. Sometimes a stronger party in a case is able to unduly influence the process of who is assigned as a psychologist. I have had cases come to my attention where a party with a solicitor can have much stronger representation or engagement around something like the section 32 process, which should be equitable and give clear results for everybody. These are some examples of areas where this legislation is needed.

I urge the allocation of more resources. I am glad the Government is putting guidelines in place but I encourage it to support the Bill. Perhaps some of the good ideas that may emerge from the civil legal aid review that we might have in the autumn could be incorporated via Government amendment to the Bill. There is potential for this to be a vehicle for a collection of good ideas in how to improve civil legal aid and its practice in Ireland.

This is an example, I hope, of good ideas coming through here on the Commencement. We should not have to bring a Bill before the House to effect change. Sometimes, when the flag goes up in an amendment, question or on the Commencement, I hope the Government would get better at taking those ideas back and really translating them into action as quickly as possible.

I warmly commend Senator Boylan on what is an important, consequential and meaningful Bill. The Minister of State has already been asked the question about people who have been refused legal aid in the past because of a previous interpretation of the law. Will there be a measure to ensure they are informed that they may have access to aid in future? They should know, if their cases are coming through again, that they can access such support.

Photo of Robbie GallagherRobbie Gallagher (Fianna Fail)
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Ba mhaith liom fáilte a chur roimh an Aire Stáit go dtí an Teach. I welcome the Minister of State to the House today to discuss this most important issue. At the outset, I wish to commend Senator Boylan, and indeed my Sinn Féin colleagues, on bringing forward this piece of legislation. From a Fianna Fáil perspective, we will certainly not oppose it. We very much welcome it.

As previous speakers have commented, events have moved on, in that the legal aid board has moved to remove the housing assistance payment, HAP, from the calculation to entitlement to legal aid. That is very welcome. I am aware that there was mention earlier of the delay in the Government moving on this particular issue. Most reasonable people would be take the view - which I would certainly put forward - that in relation to this particular piece of legislation, the Government has only been in office for 12 months. By any stretch of the imagination it has been an extraordinary time with the Covid-19 pandemic, when the normal business of the day, if I can use that expression, was left to one side not just on issues as warranted as this, but also in respect of many other issues. Therefore, the Government should be lauded and not criticised for moving on an issue such as this within the first 12 months of being in office. It is worth making that point.

I also welcome the fact that the justice plan for 2021 states that a review of the entire civil legal aid system will take place. That is most welcome. I look forward to the consultation on that, when, as outlined by Senator Higgins previously, people will have an opportunity to make submissions to the review. When will that review take place? Does the Minister have a date in mind for it? How long will the review last? When can we expect the recommendations that flow from that review to be enacted and implemented?

In Fianna Fáil, we are quite proud of the fact that in 1979, it was the then Minister for Justice, Gerry Collins, who introduced the legal aid board to ensure that income - or should I say, the lack thereof - would not be a barrier to anybody being able to access justice in this country. The scheme has been reviewed many times since then. I commend my colleagues across the way for highlighting the issue of HAP and any other welfare payments not being used in the calculation for eligibility for legal aid in the future. It is a most welcome development.

I will not be repetitious. Most of the points I wished to make have been covered. In summary, I welcome this development and look forward to its speedy implementation. I have a few questions for the Minister of State. First, would he say that there is enough public awareness out there about the civil legal aid system, as it currently stands? Are people aware of what their rights and entitlements are, or should the State be conducting a publicity campaign on an ongoing basis, showing people that there is help out there for them, they are not alone and justice is not beyond their reach because they may not have enough money in their pockets?

Second, in respect of the income threshold of €18,000 per annum, when was the last time that figure was reviewed? Is it reviewed on a regular basis? Would there be merit in exploring the possibility of introducing a tiered approach for those who are just marginally over the income threshold, so that for those earning €18,500, for example, which is just above the threshold, some assistance could be given?

The issue of fees being paid to those in the legal profession who participate in the civil and criminal legal aid systems was raised by a number of my colleagues earlier in the debate. Some of my colleagues, as practitioners, voiced the opinion that the remuneration they receive for their work is less than adequate. From my perspective as a layperson, I would hate to think that perhaps the quality of legal advice available to me would not be as high as it would if I was paying for it myself privately. I would like to think that the quality of legal advice coming through the legal aid system would be as good as any available. Perhaps the Minister of State would comment on that point.

Finally, I have made reference to the fact that I commend my colleagues across the way on bringing this legislation forward. Is legislation necessary? Unfortunately, we are all aware of the length of time that it takes legislation to go through both Houses. I would certainly like to think that the implementation of this recommendation would be instant, which is to say that it would be introduced much more quickly than it would take for the legislation to go through both Houses. I would welcome it if the Minister of State could provide a timeframe for that. It is not that I am dismissing the legislation for one minute. However, I would like it not to be necessary and for the Government to act in such a swift fashion that the recommendation would be invoked long before the legislation has passed through both Houses.

In summary, I welcome the debate. It is most worthwhile. I commend my colleagues across the way on their input. I look forward to the citizens of our State being able to avail of this new departure relating to HAP sooner rather than later.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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I welcome this legislation. It is well done and it is a welcome item of Private Members' business for this evening.

I welcome the decision to act sensibly, compassionately and rightly with respect to disregarding HAP in the calculation of eligibility for legal aid. It is an inappropriate inclusion and should have always been an inappropriate inclusion. It is an important step. However, it is in the context of the review of the entire civil legal aid system that that needs to be done. In the context of the justice plan, I welcome all of the five goals that have been set out in that, but particularly No. 2, which is to improve access to justice and to modernise the courts system. That is badly needed.

There no question that the pathway to justice is prohibitive, at times, for people. In the last year, there have been cases around the leaving certificate and injustices that people felt as a result of the use of the algorithm in the calculation of grades. I know of many parents who were unable to take any sort of action because they just could not afford it, yet feel that their child was discriminated against in that. Therefore, there are instances that occur every day where there is no opportunity to move forward because the costs of litigation are so high. Senator Martin referenced defamation actions as being particularly difficult to initiate. If one is waiting on legal aid to initiatie a defamation action, it will be a long wait and outside Statute of Limitations.

A number of the speakers spoke about fees in their contributions. I am mindful that in a context in which we are talking about setting aside HAP as being inclusive so that particularly vulnerable people can get access to justice, the discussion, particularly by lawyers, of fees may appear to be quite a difficult or, dare I say, a vulgar one. However, I wish to put it into context. In the early years of being called to the Bar people can go and sit for a whole day making a bail application, and at the end of the day, get paid €25. When we talk about it, we are doing so while being mindful that there is a huge attrition rate out of the Bar. People pay a lot of money to get through college, to equip themselves, ambitious for what that might bring to their lives and their desire to advocate on behalf of others, but that is the sort of thing that happens.I took cases in the District Court in the beginning, and one was paid €125 and a solicitor would take his or her cut out of that. I wish to put that in context lest anybody think we are talking about thousands of euro here, because we most certainly are not.

The remuneration of solicitors employed in the Legal Aid Board, and I brought this up with the Minister, Deputy McEntee, when it was first brought to my attention, is dealt with differently from how it is dealt with for other solicitors employed by State entities such as the Chief State Solicitor's office or the Office of the Attorney General. If one is an experienced solicitor coming into the Legal Aid Board, one's salary does not start at an appropriate point in the scale. One is always started at the lowest point in the scale. Consequently, there is a large turnover of staff because it is just not financially viable as people become more experienced. As a result, experienced people are not attracted into going there or if they go there for a period to have the financial security that goes with being employed, they do not stay. Then there is a lack of continuity in the solicitors dealing with the legal aid cases. That contributes to the difficulties of the situation and to the frustration clients and people in need have with the situation. That has to be borne in mind.

I believe the length of the waiting lists is a resourcing issue and definitely must be addressed.

My final point relates to the areas that are not covered by legal aid. We need a mechanism to deal with change. Recently, for example, there was a decision of the Supreme Court that changed the operation of the Workplace Relations Commission. It is going to oblige oaths and cross-examination. Not everybody is represented by a trade union. While there is no fees risk in the Workplace Relations Commission, there is still a need to brief a solicitor in some instances because the areas of law are quite complex. It is not straightforward even though it was set up to be such. Members of the Law Society of Ireland and the Bar Council have been saying for a long time that there must be an element of legal practitioners there. However, there would be no legal aid and even if there was, the Statute of Limitations on any employment law matter would be well and truly passed by the time any sanction would come that would permit the legal aid element of it. We need a mechanism that responds to a Supreme Court determination in a such a situation and recognises that the circumstances have changed and that perhaps a legal aid element is required. There must be constant reviewing of what is included and funded in order that we can appropriately ensure that the most vulnerable have access to justice. Ultimately, everybody should have access to justice.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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Cuirim fáilte roimh an Aire Stáit don Bhille anocht. Gabhaim buíochas leis an Seanadóir Boylan, ní hamháin as an Bhille agus as an ábhar seo a chur le chéile ach as é a chur os ár gcomhair don díospóireacht fosta. I wish to address the wider legal aid issues beyond the pertinent issue my colleague, Senator Boylan, has raised here. She has achieved a very welcome breakthrough for those directly affected. In terms of some of the earlier contributions, it was perhaps the intervention of Senator Boylan that put this change into motion.

I will first acknowledge the principle source of the points I will make tonight. Earlier this month, FLAC provided a comprehensive and thoughtful paper on the benefits of legal aid. It has campaigned for a root and branch review of the system. It has made several detailed submissions to Oireachtas committees charged with the responsibility of scrutinising and regulating society in terms of equality, family law, legal aid and the Courts Service. FLAC described legal aid as a "bridge" for those who cannot afford to access the law. That image of a bridge is particularly apt for the people most in need of legal aid because, invariably, they are people or communities on the margins of society, isolated from the rest of society and, indeed, often isolated from the Government and the State, which have a duty of care to protect them. Legal aid is an instrument which empowers the powerless and often represents the best chance people have of being treated with respect, equality and as full members of society in a courtroom. It is especially used in circumstances to do with social welfare law, personal debt and credit law.

It would be a mistake to assume that those in need of legal aid are small in number. People who avail of legal aid are affected by a range of issues, such as social welfare decisions, house repossession, eviction, insolvency and financial exclusion. They include community groups, Travellers and ethnic groups such as migrants and others. Legal aid has assisted in domestic violence and divorce cases, custody and guardianship and child maintenance, as well as individuals who choose to represent themselves in court. During the pandemic FLAC was inundated with queries about family and employment law and landlord and tenant law. The case is well made not only with respect to the practical importance of legal aid to those in need of it but also as a statement of the type of society we wish to live in, where a cornerstone of the legal system is access to justice irrespective of one's financial circumstances or one's place in society.

The Government accepts that legal aid, as it is available at present, is too narrow in its reach. We welcome the ongoing review of the legal aid system. However, it cannot conclude soon enough. Each day without meaningful reform means people are potentially being denied access to justice. Improving access to justice means providing better information and advice, ensuring people have access to legal representation in the courts and more options to resolving disputes outside the courts. Debt can be a barrier to accessing justice. Families on low incomes experiencing debt can find it difficult to manage, further excluding them. Access to justice is a fundamental human and constitutional right and is recognised as such under a range of regional and international instruments, including the European Convention on Human Rights.

Legal aid is essential to ensure that people have access to justice, have their voices heard, exercise their rights, challenge discrimination or hold decision-makers accountable. Its availability should not be restricted to who is in government, nor should its value be counted in pounds or euro but rather in the contribution it makes to upholding the values of a caring and considerate society grounded in human rights. While the change brought about by this Bill would mean the world to the people affected, it is important to bear in mind that this is just the tip of the iceberg when it comes to reforming civil legal aid and ensuring everyone has access to justice. As Senator Boylan pointed out, we will continue to press ahead with this legislation to ensure that no Minister can walk back from it and that HAP will never again be allowed to be counted as income.

Sinn Féin will continue to push for a review of the cases that have already been denied legal aid. There must be a full and proper review of the HAP recipients who have been penalised already. Again, I thank Senator Boylan for championing this issue within this institution, as well as alongside others outside it. The U-turn announced last week by the Government to change the guidelines serves to reinforce how unjust this anomaly in the legal aid eligibility criteria was. The Minister of State will acknowledge, as other Members have acknowledged, that it was indefensible. Thanks to this Bill, people across the country, most notably women, will sleep a little easier tonight.

I thank the Minister of State for her attendance. Indeed, I thank all colleagues who have taken part in this debate and acknowledged not just the work of Senator Boylan and others but also the intent behind bringing this Bill forward. The discussion acknowledged the need for this change and that the situation was unjust and could be changed. With this move tonight, Senator Boylan's work will ensure the Seanad can be proud to have played a small, modest but important role in ensuring this change is delivered for those most impacted.

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
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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.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I thank the Minister of State and congratulate her on her expanded brief. I wish her good fortune in that regard.

Photo of Lynn BoylanLynn Boylan (Sinn Fein)
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I thank the Minister of State for addressing much of what we asked, as set out in my opening statement.

I do not mean this in any combative sense but while Senator Gallagher is correct that a Fianna Fáil Government introduced civil legal aid, it is important that we give credit to Josie Airey, the woman who took the case to the European Court of Human Rights. Ms Airey, like so many women in the history of this State, was met with closed doors from the entire political establishment when she sought a separation, having been in an abusive marriage. She was snubbed by all politicians, the Catholic Church and the legal profession. She wrote to the European Commission of Human Rights and it was that organisation which provided free legal aid for her to take a case. It is thanks to Josie Airey that we have a civil legal aid system today.

I mention another woman, Kuxi, who raised this issue with me some months ago when she outlined the impact it was having on her and women she knew. She deserves credit as well. I could not believe it was true when she told me that HAP was being counted as income. I commend her because it was her work that prompted me to introduce this Bill.

Senator Martin made a point about ambition and noted that this is a pragmatic Bill. I hope we can work together on this. I have spoken in this Chamber many times about access to legal aid for the Stardust families at the inquest and the regulations in that regard have changed. However, that change was specific and other families who have lost loved ones in contested circumstances are now being denied legal aid in the inquest courts. Maybe that is something we can work on collectively as well.

Photo of Lynn BoylanLynn Boylan (Sinn Fein)
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As I said, I was being pragmatic in bringing forward this Bill, which has just one line of text. The reason for that was that I was informed that this problem could be fixed overnight by regulation in the same way access to legal aid for the Stardust inquest was fixed with a regulation. Members of the Opposition cannot change regulations so we have to amend the Act to render it out of synch with the relevant regulation.

I take on board the Minister of State's points that there could be consequences if my Bill were to be passed as it stands. It was introduced out of frustration because while there is a plethora of issues with civil legal aid, this one was acute and was having a significant impact, particularly on women surviving domestic violence. I felt we could not wait for the review.

Having not been long in this House, I would be proud to get my Bill through Second Stage today. However, in order to have it progressed through all Stages, I would prefer to have the Minister of State take the legislation and do the necessary work with the regulations as that would give certainty to the 70,000 households on HAP who could find themselves in need of civil legal aid at any point. While the updated guidelines are welcome, I know from the woman who raised her case with me that she was granted civil legal aid while in receipt of HAP, but a subsequent significant shift in the legal aid approach to HAP meant that every appeal was being rejected. That was happening in all of the cases on which she was helping women to appeal.

Guidelines are great but they can be changed. We need certainty and that would be best achieved through a regulation that can address potential consequences. That would also be faster. If that is not done, we will have to go the way of my Bill and we will then consider amendments.

I thank everybody for their contributions and for supporting the Bill.

Question put and agreed to.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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When is it proposed to take Committee Stage?

Photo of Lynn BoylanLynn Boylan (Sinn Fein)
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Next Monday.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Is that agreed? Agreed.

Committee Stage ordered for Monday, 7 June 2021.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I congratulate Senator Boylan on achieving unanimous support for her Bill. When is it proposed to sit again?

Photo of Barry WardBarry Ward (Fine Gael)
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Tomorrow at 9 a.m. in the convention centre.

The Seanad adjourned at 9 p.m. until 9 a.m. on Tuesday, 1 June 2021.