Different criteria should not apply for civil legal aid

The IMF's departing representative in Ireland, Peter Breuer, pointed out last Monday, in an address to the Institute of International and European Affairs, that mortgage arrears remain one of the biggest issues facing the Irish State.

Some 27 per cent of the loan books of Irish banks remain in the non-performing category. Lenders have taken possession of hundreds of residential properties so far this year, while tens of thousands of people remain deeply rooted in mortgage arrears.

What this means is that a sizeable proportion of the State’s population – and predominantly those from poorer socio-economic backgrounds – are involved in civil legal disputes with banks and lenders that Free Legal Advice Centre director general Noeline Blackwell described last week as potentially having “grave consequences for a person’s welfare or livelihood”.

Ms Blackwell was speaking at the annual conference of the Legal Aid Board, the body responsible for the provision of free legal aid in civil cases.

She said the board’s “totally rigid means test” for the granting of free legal aid in civil cases compared with the State’s more favourable “discretionary” policy in criminal cases was a key human rights issue.

“In a criminal charge the right to legal aid is invoked when a person cannot afford to pay for their own defence in circumstances where there is a risk of imprisonment but also where there are grave consequences to a person’s welfare or livelihood,” she said.

“Civil legal aid uses very different criteria. The result is that there are many issues which will have grave consequences for a person’s welfare or livelihood but which will not attract a right to legal advice, assistance and representation if necessary.

“A person will have to meet the totally rigid means test. They will have to show that the matter is within the Legal Aid Board’s mandate. The grave matter of the guardianship of children or the right of children to safety in their home will be covered but, except in very limited circumstances, the right of representation in eviction proceedings where the child will be left without a home will not be covered.”

Ms Blackwell said most people would agree that repossession of a family home or eviction of a family from their home were actions that have grave consequences for a person’s and a family’s welfare and livelihood.

“Each of these families is dealing with something with enormous consequences for their welfare, livelihoods and reputations.

“Each of them is facing into once-in-a-lifetime negotiations to preserve their homes or to reduce debt to a manageable level.”

Tribunals

In her address Ms Blackwell said there was a “total lack of any system at all” for legal representation at tribunals, where poor people “quite regularly” have decisions made against them that “affect their welfare and livelihood in the most fundamental ways”, such as citizens attending social welfare appeals tribunals or employment appeals tribunals.

“In both decisions can be taken based on complex legal constructions that are difficult enough for a lawyer to understand, and that an applicant may not be able to articulate at all,” she said.

“Many a poor employee has been forced to represent themselves in complex legal matters where their job or proper compensation for unfair dismissal due to indirect discrimination is at stake.”

Ms Blackwell said there was an urgent need to reform the legal aid system to make it more like the discretionary system that exists in criminal cases.

She suggested the cause of the difference between the two systems is that our legal structure and system and those who design and operate it are “much more familiar with civil and political rights – liberty, the right to vote, the right to due process – than they are with the social and economic rights to health, education, an adequate standard of living, or social security”.

“It may also be that civil and political rights seem more important and relevant in our system designed and operated in the main by those with less experience of the denial of social and economic rights or less risk of such experience in the future.”

Different language

Legal Aid Board chairwoman

Muriel Walls

also touched on the difficulty of access to legal aid, and highlighted the “different language” used by lawyers as an obstacle for the layman engaged in legal proceedings.

"It is about time that we used plain English and that we organised the court documents in a simple way," she said. "In Ireland we still regularly use Latin phrases, for example, ex-parte, traversed seriatim, pro tem, functus officio, res judicata.

“In our documents we are ‘praying’ for this and ‘pleading’ for that. I checked online and 94 students in Ireland took Latin as a Leaving Certificate subject in 2011. Latin was the official language of Ancient Rome.

“So no matter how much we like the Latin phrases, and they are a useful shorthand for us, we need to drop the Latin and the legal jargon.”