Chief Justice: Civil legal aid cannot be limitless demand-led system
Chief Justice Donal O’Donnell this morning opened a second two-day conference on access to justice, this time focusing on civil legal aid. We reproduce below the bulk of his opening address.
Civil legal aid might indeed have been an obvious focus of the first conference of the Access to Justice Group, but I think that it will be helpful that we are addressing that issue following from the work done at that first conference in October 2021 which involved an initial mapping of the entire area.
It means that discussions today and tomorrow can be approached not merely by focusing on the existing system and arguing that greater resources should be applied to it, but by understanding a broader canvas, and where civil legal aid must be seen as one part, albeit one of the most substantial parts, of a complex jigsaw.
This involves a recognition there is a whole world of providing information, legal assistance and advice which does not involve proceedings or going to court and that even within the focus of access to justice in courts, there are a number of alternative aspects to meeting people’s needs, such as involving the continued pro bono work by schemes such as the Voluntary Assistance Scheme of the Bar Council, by ordinary solicitors and barristers, by possible third-party funding and by measures designed to reduce costs of proceedings.
I am afraid that I can remember the Pringle Report in 1977, and the eventual introduction of the civil legal aid system and the commentary that surrounded that. It is tempting to recall those days now in a rosy hue and to award campaign medals for those who pressed for a comprehensive legal aid system and criticise the supposed faceless bureaucrats in the civil service who were suspected of resisting the implementation of such a system.
But in truth the arguments in the late 1970s were really quite simplistic. It was easy in those days for anyone dissatisfied with the system in Ireland to simply look to what happened in the UK and ask why we were not doing the same thing. But as Chief Justice Clarke said at the last conference, we must recognise that there are competing demands for funds and that government does not have a bottomless purse. That was certainly true then. I think that modern-day public servants and indeed, modern economists would be horrified if they had to experience the very limited and constrained budgetary conditions in Ireland in the late 1970s.
In the 1970s it seemed that the welfare system in the United Kingdom was in full bloom, and in truth the envy of most of the world and not just Ireland. To take some interrelated issues, the National Health Service was the jewel in the crown of the welfare state. There had been two or three generations who had the benefit of free third-level education with a generous grant system and in the legal field the UK legal aid system, both civil and criminal, was widely regarded as the gold standard as far as legal aid was concerned.
It is both startling and sobering to see how that landscape has changed. The National Health Service in the UK is creaking, third-level education there is now fee-based and student loan-funded and both the civil legal aid system and the criminal legal aid system in the UK have seen dramatic reductions in budgets that would have seemed inconceivable a few decades ago. These reductions cannot be simply ascribed to ideology. There is indeed, a more widespread acceptance that whatever changes are made to the system, there can be no return to the open-ended, demand-led system of the ’70s.
This means that looking to other countries continues to have a benefit for Ireland, even if the lessons to be drawn are rather more complex and sobering than they might have appeared then. But Ireland now has more resources, and more knowledge, than it had in the late 1970s, and this conference is an attempt to bring that knowledge together and to help to devise an efficient system that is well adapted to today’s needs, and which will make the best use of the resources that may be available.
It might be tempting for a more pragmatic or perhaps cynical commentator to suggest that, as reform of the system will inevitably incur a cost and risk creating a limitless demand-led system, it will be impossible to achieve significant improvements, and that really it is best left to muddle along and provide what it can.
I think that is wrong for at least four reasons.
First, that assumes that the system can continue to muddle along and will not simply break under the weight of the increasing demands being put upon it to handle a greater volume of what are increasingly complex legal issues.
Second, as discussed at the October 2021 conference, there is an argument for investing in justice because legal problems can also create consequential problems in other areas such as health, at an additional cost to the taxpayer.
Third, it should not be assumed that the pace of reform is a matter in the sole control of administrators or even legislators. We are here today in this format precisely because the administration of justice is a shared space. One of the factors identified at the October 2021 conference in the insightful contribution offered by then Judge Síofra O’Leary, now the first Irish president of the Court of Human Rights, was that, to a very large extent, the law on legal aid both civil and criminal, has been influenced by litigation and court decisions.
Civil legal aid was most dramatically influenced by the Airey case in the Court of Human Rights, and criminal legal aid by cases such as The State (Healy) v. Donoghue, and Carmody v Minister for Justice. As Judge O’Leary pointed out, that position is not merely a matter of Irish constitutional law, or the law of the European Convention on Human Rights, but also and increasingly an issue which arises in the field of EU law.
A large and increasing proportion of our laws derive from EU law and are governed by standards which apply across Europe, and which increasingly provide for the requirement of legal representation in addressing matters such as applications for asylum and European arrest warrants. Similarly, the impact of European developments are being felt most strongly in the field of environmental litigation, as was recently discussed in Mr Justice Brian Murray’s judgment for a unanimous Supreme Court in Heather Hill Management Company v An Bord Pleanála.
I know that many thoughtful people are rightly uncomfortable with the idea that all social issues can be converted into legal issues so that decisions are made by courts rather than legislators. Apart from fundamental concerns derived from the separation of powers, there are also real and valid concerns which relate to competence and resources.
Broadly speaking, litigation shines a very bright light on issues, but does so through a keyhole and has some powerful but essentially crude weapons. It lacks the power, for example, to devise sophisticated administrative schemes. But the administration of justice is expressly provided for in the Constitution, the European Convention on Human Rights, and the treaties establishing the European Union and the Charter of Fundamental Rights. If problems in relation to legal aid cannot be resolved through the administrative and political systems, then it will not be surprising if claims are brought to court in Dublin, Strasbourg or Luxembourg and possibly all three.
The fourth reason to reject a policy of inertia or benign neglect is I think particularly important today. The improvement of the administration of justice through the improvement of the civil legal aid scheme is the right thing to do in its own terms, but it is also arguably essential at a basic functional level. It is worth asking why the EU is concerned with access to justice and the administration of justice, and why the Court of Justice of the European Union has delivered a stream of judgments on the question of the independence of the judiciary and the administration of justice, starting with the Portuguese judges’ case, and involving as recently as last month, the delivery of an Advocate General’s opinion in respect of the appointment of judges in Romania. Why, we should ask ourselves, has this line of case law emphasising the rule of law recently become so prominent?
These cases are, I would suggest, examples of an increasing recognition that the administration of justice is not a luxury or a mechanism that can be taken for granted. It is one of the essential features in the structure of society, which binds it together and allows it to function and provide a legal environment in which people can live their lives in freedom in the type of societies we have taken for granted in Western Europe since the Second World War.
Again, even when the systemic importance of a functioning legal system is acknowledged, the commentary can be sometimes frustratingly simplistic. Everyone has heard about the importance of checks and balances in the democratic system, and how courts provide a significant check and balance on the power of government and parliament, particularly in a parliamentary system, where the government sits in the legislature. This, so far as it goes, is a recognition of an important and vital feature of our constitutional balance.
It is also true that it is increasingly recognised that, in an international world, a legal system that is demonstrably impartial competent and efficient is an essential component of an economy that seeks to attract international investment. But important though these things are, they are an insufficient and incomplete justification for the existence of a court system.
There are currently 170 judges in Ireland. It can be said that of those only the nine members of the Supreme Court regularly encounter fundamental issues of separation of powers and those checks and balances, and even for them it is not in truth a daily occurrence. Fewer cases involve international investment. Most cases are more prosaic.
The District Court, for example, is by far the busiest court in terms of throughput, but rarely if at all concerns itself with checks and balances or international investment. Apart from dealing with routine matters and processing cases for trial in the Circuit Court and the Central Criminal Court, the District Court deals mostly with what might be described minor crime, and increasingly large amounts of family law and child law. Crime and what can be broadly called family law consume a lot of the legal aid budget.
These cases are not small or trivial matters. They may well be the only time people come before the courts, and people doing so need to believe that they will obtain justice. An important part of that is that they should feel that their side of the case will be presented, and will be heard, and that if the case is decided against them, it is not because of an imbalance in representation.
That belief in the justice process is a critical part of the bonds that hold a society together. Loss of faith in that system ultimately undermines belief in and commitment to the State itself. Maintaining a fair and accessible system in which disputes large and small can be resolved is not, therefore, as I have said before, a luxury or an optional extra. It is in truth the business of the State, and it has always been the business of the State.
The famous American lawyer Dean Wigmore said more than 100 years ago that the State has been in the business of law long before it entered the business of health or education. That is because civilisations with perhaps fractions of the resources now available in the modern world recognised that a functioning justice system was an essential service that had to be provided by any society which wished to endure. And in today’s much more complex world, a fair and efficient court system is an essential component in any state which respects the rule of law. It is more difficult to deliver that demonstrable fairness if parties who may have to come before courts cannot access assistance advice and representation.
We have to find smarter ways, more efficient ways, and fundamentally better ways of providing information, advice, assistance and representation to people in this State. That is something which demands the attention, the energy and the commitment of everyone here and I hope, and I think we should all hope, that the outcome of this conference will significantly enrich the discussions and reflections of the civil legal aid review group and will contribute to well thought out, beneficial and effective reform of our civil legal aid system.