It is now over 25 years since the landmark Airey judgment in the European Court of Human Rights, which found Ireland in breach of the convention by failing to provide civil legal aid for those unable to access legal advice themselves.
This prompted the Government to set up the scheme we have today, administered by the Legal Aid Board.
Before that, law students from Trinity College and UCD, supported by a handful of practising lawyers, set up a voluntary Free Legal Aid Centre (FLAC). Among its early members were former UN Human Rights Commissioner Mary Robinson and former Attorney General David Byrne. FLAC has campaigned since for a comprehensive legal aid scheme, taking important test cases in the courts, and carrying out research.
Yesterday it published a report on the State's civil legal aid scheme. This revealed how inadequate it is when set against the needs of people of limited resources and the State's obligations under international law. Thousands of deserving cases never obtain legal assistance because of a combination of the design of the legislation, the restriction of resources allocated to the Legal Aid Board and the way in which the board interprets its mandate.
Many people are denied access to the courts by the high cost of litigation. Certain areas of litigation are excluded from the remit of the board by the Act setting it up, including disputes about land or property, representation before the employment appeals tribunal, conveyancing and defamation. In practice 95 per cent of the board's work has been dealing with family disputes.
The scope of the scheme is further limited by the very restrictive means test that applies where, except in family law cases, the income of the whole household is taken into account. The board was unable to meet even this restricted demand with waiting lists of up to two years. There was a real reduction in the funds allocated to the board by the Department of Justice over the years.
The situation improved last year, and happened to coincide with a successful case in the High Court taken by a woman over a two-year delay in accessing a legal aid solicitor when she was in the middle of a separation. The board is now close to its target of offering an appointment in not more than four months.
However, this is not enough. The European Court of Human Rights has found that legal aid should be made available, in a practical way, if this is indispensable to vindicate a person's right of access to justice. All Irish state institutions must observe the Convention and court jurisprudence in their actions. This applies to the Department of Finance as much as to the Department of Justice .