Legal aid reform - Review must consider all the options

AS WITH so many other socially desirable and entirely justified schemes the cost of providing free legal aid snowballed in recent years.

As our ability to fund these schemes grew so too did the capacity of those services to absorb ever greater sums of money. They were the epitome of Charlie McCreevy’s if-I-have-it-I’ll-spend-it school of economics but with the inevitable consequences of such short-term but unaffordable largesse.

Despite a 10.5% cut in professional fees imposed by Justice Minister Dermot Ahern earlier this year, costs have increased by more than 30% in the last four years, jumping from €40 million in 2005 to something expected to be north of €55m this year.

Even if our economy had not imploded, this rate of increase would not have been sustainable. In our present circumstances the minister is absolutely right to carry out a review to ensure that the scheme remains viable and that it is not abused by any of its beneficiaries.

The number of certificates authorising free legal aid granted by the courts has increased from 30,000 in 2003 to 55,000 in 2008. That figure has nearly doubled though crime rates have not.

It is entirely appropriate that the minister should insist that applicants face compulsory means-testing when either the gardaí or the Director of Public Prosecutions object to a defendant getting free legal aid.

We have all seen cases where people who seem to have considerable resources at their disposal turn to the state for legal aid. This can make a mockery of the system and places unacceptable burdens on a process designed to help those who cannot help themselves.

It is also prudent to insist that the solicitor representing applicants for legal aid produce his client’s PPSN. Equally, it is fair that those with a capacity to make a contribution towards the cost of their defence do so.

The minister has promised that the Criminal Legal Aid Bill, currently being drafted, will attempt to contain the rising costs of legal aid. To this end he may shift responsibility for administering the scheme from his department to the Legal Aid Board.

Just last month the Supreme Court ruled that a Kerry farmer charged with 42 offences related to alleged wrongful movement of cattle had a constitutional right, prior to trial, to apply for legal aid to include representation by a barrister in addition to a solicitor.

This ruling may have serious consequences for funding and brings into question yet again the very prominent role our courts have in defining legislation.

Before the Criminal Legal Aid Bill is finalised it might be appropriate to consider if the state should employ, on a full-time basis, solicitors to do this work.

Undoubtedly there would be opposition from those making very fine livings from the scheme and their professional bodies but, like every other group, they cannot expect that things will not change if we are to avoid bankruptcy.

This principle works for other professions and in other jurisdictions so why not here? It might just be the way to best serve those in need of the service and those who pay for it – the ever-liable taxpayer.