The beautifully worded legislation establishing Ireland's civil legal aid scheme states that it is dedicated to ensuring that "persons of insufficient means" have access to legal services. And if you cannot afford a private lawyer, you might believe that help is out there in a state founded on principles of equality and social justice, governed by the rule of law, where all of our children are cherished equally. But you would be wrong. Even though obeying the rule of law is not optional in Ireland, it seems that accessing justice is - especially for people on low incomes.
A comprehensive civil legal aid scheme ensures that people who cannot afford private legal representation can access justice in a timely and adequate way. This means that where someone has been wronged, they can have their voice heard, challenge discrimination or hold decision-makers accountable. It also ensures that people can vindicate their basic human rights, something which Ireland is bound to do through several international treaties, including the European Convention on Human Rights.
FLAC (Free Legal Advice Centres) has been campaigning for people's basic right of access to justice since its foundation. Before the recession, various FLAC research reports identified shortcomings in the civil legal aid scheme, which is run by the Legal Aid Board via its network of Law Centres around the country. These included the restrictive nature of the scheme, with its almost blanket exclusion of tribunal work and areas like housing; a lack of diversity in the work undertaken by the Legal Aid Board, focusing almost exclusively on family law; and charges for legal aid services that are high enough to be a real barrier for people on low incomes.
Our latest research , Accessing Justice in Hard Times, shows that during the economic downturn these deficiencies were intensified, as more people saw their incomes plummet while their personal situations in family, employment and personal debt deteriorated. Rising poverty meant more people became eligible for Legal Aid Board services. At the same time, however, the Board’s funding and staffing levels were reduced. Inevitably, and despite the dedication and hard work of its staff, the Board’s capacities were severely diminished.
In short, the system was overstretched and underfunded; inevitably, it buckled. Between 2007 and 2013, the number of people waiting on a first consultation with a solicitor jumped from 1163 to 5067, a percentage increase of over 335%. In the period 2007 to 2012, the maximum waiting time in a Law Centre for legal services went from 6 months to 15 months. In some parts of Ireland today, you will wait up to 38 weeks for a first consultation with a state-funded solicitor.
In response and given its very limited resources, the Board introduced a number of measures, one of which was to raise its basic charges. The ultimate effect was both to deter and deny people on low incomes from accessing the Board’s services. In particular, this action had severe implications for people reliant on social welfare payments as well as victims of domestic violence, who are particularly vulnerable during periods of austerity.
During the recession, the restrictive nature of the legal aid scheme had a particular impact. Statistics from FLAC’s independent telephone helpline and the nationwide legal advice centres run in conjunction with the Citizens Information Service clearly show a rise in legal problems related to social welfare, mortgage arrears, housing repossessions and all sorts of employment issues during the downturn. However such matters are largely excluded from the remit of the state scheme, which can only mean that it cannot address actual legal need that is sparked in difficult economic times.
FLAC believes that the inability - or unwillingness - of the Board to expand its remit to cover more areas of civil law, especially to include issues which became more prevalent during the recession, created extra barriers for vulnerable and marginalised groups seeking to access justice.
Ultimately, the recession laid bare fundamental flaws in Ireland’s legal aid system. In the absence of an efficient, accessible and sustainable scheme, people could not access the legal help they needed; and restrictions, cuts and delays disproportionately impacted on vulnerable and marginalised groups.
In late 2016, measures were announced to increase the Legal Aid Board’s resources and make greater use of private practitioners to reduce waiting lists. However, while these commitments are welcome, many of the problems identified during the recession remain. We must wonder whether there is an appetite to address these issues - they are certainly important for the more than 30 groups working for social justice who see civil legal aid as a key tool in fighting poverty and inequality in our society.
FLAC believes in order to meaningfully improve access to justice, provision must be made for a fair, effective and efficient legal aid scheme which is compliant with Ireland’s international human rights obligations. It’s more than high time that civil legal aid was recognised as a basic human right, not a privilege.
Noeline Blackwell is Director General of FLAC (Free Legal Advice Centres) which promotes equal access to justice for all - www.flac.ie