A major review of Irish civil legal aid failed to address the possibility of using it to achieve change in Irish society, a public-interest lawyer has said.
Prof Gerry Whyte said the majority report of an 11-member review group, endorsed by nine members including its chair, former chief justice Frank Clarke, appeared to be based on a “service” model of legal aid focused on resolving individual difficulties rather than a “strategic” model focused on collective issues.
While the majority report makes some very useful recommendations for improving the current legal aid scheme, he said it appears implicitly to view the goal of legal aid as securing access to existing rights and as a service model largely focused on the needs of the individual.
In contrast, Prof Whyte said, the minority report of two members of the review group – Eilis Barry, chief executive of the Free Legal Advice Centres and law professor Tom O’Malley SC – advocates a strategic model.
RM Block
Examples of the successful use of a strategic model in Ireland included litigation that improved State provision for children with severe or profound learning difficulties and children in secure care, and for bereaved cohabitants seeking parity of treatment with widows and widowers in relation to social welfare pensions.
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However, he said access to such a model of legal aid is restricted in the State due to the “very limited” resources of the legal aid organisations operating in the voluntary sector.
Implementing the minority report’s recommendation for the Legal Aid Board to resource existing independent law centres and support development and delivery of new targeted and specialised services would mark “a significant step” towards resolving this issue, he added.
Prof Whyte, of the Trinity College Dublin law school, was delivering the keynote address to a two-day conference at the University of Galway, organised by the school of law, on the theme ‘Public-Interest Litigation and Access to Justice’.
Opening the conference on Friday, University of Galway law professor Donncha O’Connell said it was being held at a time when public-interest litigation and access to justice appear to be “under assault”.
He said the “disappointing” majority civil legal aid review report was “apparently conditioned by an excessive sense of realpolitik or ‘economic realities’”.
In contrast, he said the minority report was “unapologetic in its idealism” while grounded in an acute appreciation of the realities faced by those whose access to justice “is so routinely and casually denied”.
Some people may “feel queasy” about Ireland promoting itself as a venue for the hearing of international commercial disputes while it “struggles to guarantee access to justice for many real people within its jurisdiction”, Prof O’Connell said.
Solicitor Fred Logue, a specialist in environmental and planning law, described as “deeply troubling” reports suggesting the Government intends to bring in laws to impose six-figure costs on environmental litigants even if they win their cases.
Irish people are being exposed on an “almost daily” basis to “propaganda pushing deregulation and attacking judges and litigants for exercising fundamental rights”, he said.
There are “huge pushes” across the world from right-wing politicians and previously centre-right parties “to kill access to justice and public participation in decision-making, and row back on 50 years of environmental rights”.
There needs to be “a proper conversation” about why there is litigation in certain areas and how to fix that, Mr Logue said. Such a conversation happened after the “disaster “ of the since abolished fast-track Strategic Housing Development procedure.
The new Large-Scale Residential Development Procedure has led to better planning applications, better plans, more public engagement at an earlier stage “and ultimately better decisions”, Mr Logue said.
The common good is served “not by squashing individual rights but by ensuring open decision-making by legitimate independent institutions, properly resourced and staffed by experts”, he added.
“Not only will widespread deregulation not work, it will delegitimise the State further and put us firmly on the path to autocracy.”
