The beautifully worded introduction to the 1995 legislation establishing Ireland’s civil legal aid scheme says that it is “dedicated” to ensuring that “persons of insufficient means” have access to legal services.
Its clear purpose therefore was that those who could not afford to pay privately for legal help would be supported by the State in getting access to the law. This would in turn advance the ideals on which the State is founded — ideals of equality and social justice in a democratic State governed by the rule of law. If this intent had been realised, we would now have a comprehensive civil legal aid scheme which would allow redress to anyone who is wronged, but too poor to stand up for their rights.
The voices heard in the legal system would not just be those who can afford to pay for it. Fundamental human rights and the values of our societies would be vindicated.
You don’t need to be a lawyer to know that we don’t have that system in Ireland. Everyone knows of cases where people could not get the legal advice or the court representation they needed and deserved simply because they could not afford it. People challenging the authorities to vindicate their rights have felt the freezing ‘chill factor’ of potentially enormous legal costs.
Flac’s latest report, ‘Accessing Justice in Hard Times’, shows that the inadequacies of our state-funded legal system, already constrained by low budgets and a somewhat narrow mandate, were intensified during the recession. As a result, many people were denied access to lawyers when they needed them and so were denied access to justice.
Pressure grew on the voluntary services provided by Flac and Citizens Information Services countrywide. A remarkable trend we noticed on our own telephone phone line — as did Flac volunteers all around the country — was that legal questions became more complex during the recession. Debt issues led to family stresses. Unemployment or reduced work hours led to debt.
People faced multiple legal issues.
Like all other public services during the recession, legal aid services were cut. But rising poverty meant more people became eligible for help from the state Legal Aid Board. Inevitably, therefore, and despite the dedication and hard work of its staff, the board’s capacities were severely diminished.
Numbers waiting on a first appointment with a Legal Aid Board solicitor rose more than 335% from 1163 in 2007 to 5067 in 2013. Back in 2007, a person might wait for a maximum of six months for their first appointment. That rose to over 15 months during the recession; even today, people in some parts of the country may wait nearly nine months for a first consultation with a state-funded solicitor.
The cost of civil legal aid rose, with serious implications for people reliant on social welfare payments as well as victims of domestic violence, who are particularly vulnerable during austerity.
No one at risk of violence should be deterred by legal fees from getting the protection that they need. Flac’s report recommends that fees should not be charged in these cases.
The recession revealed that the legal aid scheme’s restrictive nature had a particular impact. Flac’s own data showed that in austerity, people needed increased legal help in relation to social welfare, mortgage arrears, housing repossessions and terms of employment. However, these matters are largely excluded from the Legal Aid Board’s remit, forming a real barrier to justice for poor people and those living on society’s margins.
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 badly needed legal help; and restrictions, cuts and delays disproportionately impacted on those who were vulnerable.
While many people remain marginalised and live in poverty, the worst of the recession is over. Now is the time to take stock and make the civil legal aid scheme fit for the purpose laid out in legislation — ensuring that people of insufficient means have access to legal services.
By acting now, we can build a civil legal aid scheme that really works. Flac’s report has many suggestions for action. If we fail to fix our system, the next crisis will again see people on low incomes let down by unwieldy structures that deliver services too late, in a way that is not only ineffective for them but also for everyone around them: their families, the other people involved in the legal problem, the gardaí, the lawyers working in the legal aid system, the courts.
Our whole society is damaged when one section can’t access the legal system, and it is an even greater problem if that section is always just those who lack resources. A problem for those affected, but also a problem for all of us who like to think that everyone can hope for access to our justice system.