The civil legal advice service set up 25 years ago by the State has failed to deliver on its objectives outlined at the time, according to legal rights lobby group Flac.
The then Minister for Justice, Gerry Collins, said in launching the service that it was intended to "make the necessary legal services available to every deserving person in the country".
In an extensive report, Access to Justice: A Right or a Privilege, published yesterday, Flac argues that the current scheme is narrowly focused, poorly resourced and excludes many who should be entitled to assistance.
Over 95 per cent of State civil legal aid over the past 10 years has been granted to deal with family law disputes. According to barrister Peter Ward, this is partly explained by the fact that it is easier to meet the income qualification in a family law matter, as each person's income is treated separately for the means test in those cases.
"In cases where there is no dispute in a house, the entire income of a household is used to assess an applicant's means," he said.
The report points out that civil legal aid is not free. Everyone, even those on social welfare, have to pay a contribution towards the legal aid they receive. While the minimum contributions are small, the report says that in some cases a legally-aided client may have to pay the full cost of the service. "The current structure of civil legal aid is not inclusive," said Flac director Noeleen Blackwell. "It does not place the needs of the client at the heart of its decision and policy-making."
The report recommends that equal access to justice should be recognised in law and in the policy and practice of the State. It should ensure that there is sufficient provision for legal aid and advice to people of insufficient means, and that access to justice should be included in its National Action Plans for social inclusion.
The Legal Aid Board should review the current operation of the law centres as primarily a family law service, ensuring its staff is conversant with the full statutory scope of the board's services. Partnership should be promoted between the board and independent community law centres.
The report also urges the revision of means test to reflect the actual cost of living and the cost of legal services, with annual reviews of eligibility criteria. The value of the family home should be excluded from the calculation.
The State should ensure there is a secure source of funding available to the Legal Aid Board to carry out its mandate of delivering civil legal aid to people of inadequate means.
Special provision should be made to ensure that civil legal aid is available for cases involving fundamental human rights.
The report points out that Ireland may be in breach of the European Convention on Human Rights because of the restricted nature of the provision of civil legal aid under the current legislation and the practice of the Legal Aid Board. It said recent ECHR judgments have made it clear that legal aid cannot be limited to a narrow range of areas, as it is in current legislation.
"The blanket exclusion of many areas of law from the scope of the civil legal aid scheme and the narrow eligibility criteria exclude many applicants from civil legal aid . . . and run directly counter to ECHR obligations and the judgments of the ECHR," the report states.
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