Minister to ‘assert control’ over ‘tyrannical’ discovery
Democracy and the rule of law can no longer be taken for granted, Minister for Justice, Home Affairs and Migration Jim O’Callaghan has said.
However, in his address the Civil Legal Aid: From Review to Reform conference (12 January) the minister added that “a fair and accessible justice system” was an important part of “ensuring respect for the rule of law” and preserving democracy.
Yesterday’s day-long conference, organised by FLAC and Trinity School of Law, brought together access-to-justice stakeholders and experts to discuss reform in the wake of the two reports delivered by the Review of Civil Legal Aid.
The minister described how both the majority and minority reports pointed to several key areas for reform, such as the income threshold allowances and other financial aspects of the scheme.
Saying that the review also recognised that the existing system needed to “function effectively in the meantime”, the minister said the implementation of the report would need to be sequenced.
This was dependent on factors such as the findings of Ireland’s first legal-needs survey and ongoing civil-law reforms, but a civil legal-aid scheme “needs to have a civil-justice system that is effective and efficient,” he said.
Minister O’Callaghan also told the conference that he was committed to introducing many of the recommendations in the Kelly Report.
“It is essential that we ensure that the court systems are designed exclusively for the benefit of people who seek access to justice, not for the interest of lawyers or the convenience of other groups,” he said.
Tyrannical
He referred also to the importance of mediation, as well as further revisions to the Judicial Review system, particularly in terms of what he described as the sometimes “tyrannical” situations where discovery had become an even larger objective.
“I think we have to ensure that we assert control over the discovery or disclosure process, as it is acting as a deterrent to non-institutional clients,” the justice minister said.
As a result, the minister, said that he could give no timeline for reform of the civil legal-aid scheme.
Described by Prof Fiona Donson (acting FLAC chair) as “a champion of access to justice in Ireland”, Mr Justice Donal O’Donnell framed the civil legal-aid review as an opportunity to reassess how the Irish state supported access to justice.
“A fair and authoritative system for the resolution of disputes is essential to the maintenance of social order and public confidence in the administration of justice,” the Chief Justice told the conference.
He added that it was neither a “luxury or an optional extra”, and deserved proper, proportional funding, not least because “unmet legal need can exacerbate vulnerability, compound disadvantage, the consequences often displaced to other parts of the public system.”
Mr Justice O’Donnell also said that, while access to justice was multi-faceted, the significance of legal aid was that “access to legal advice and representation remains the essential means by which people can vindicate their rights.”
'Muddle along'
The Chief Justice rejected the notion that the current system could simply “muddle along” and described reform as “frustratingly slow”.
He stressed the need to move beyond discussion toward practical implementation, particularly as the model we have taken for granted since the Second World War “is under real and fundamental challenge today.”
While the majority and minority reports differed in emphasis, he said, they largely agreed on the extent of the difficulties facing the existing scheme.
“In particular, both identify the operation of the financial-eligibility thresholds and means test as excluding significant sections of the population from effective access to justice,” he said.
Complexity
The Chief Justice also cited delays, capacity pressures, and the increasing complexity of legal problems for which legal aid is sought.
In her keynote speech, Prof Síofra O’Leary reflected on Airey v Ireland as the Irish case that best encapsulated the purpose, impact, and enduring relevance of the European Convention on Human Rights.
The former President of the European Court of Human Rights said that the case was groundbreaking in recognising that governments could not remain passive where systemic barriers prevented individuals from vindicating their rights.
The professor cited article 47 of the Charter and article 19 TEU as having increasingly strengthened the principle of effective judicial protection, including rights to legal aid in certain circumstances.
Prof O’Leary speculated that Irish legal procedures and access to justice might come under EU scrutiny, particularly where systemic deficiencies existed, and she cited the review’s recommendation to reconsider the blanket exclusion of legal aid in quasi-judicial fora.
All speakers at the conference agreed that the EU Migration Pact, which takes full effect in June, will significantly increase the legal-aid caseload.