Access to justice is a crucial tenet in any democratic system – it means that every person has access to an independent and impartial court and the opportunity to receive a fair and just trial in due course of law. In Ireland, like many other common law jurisdictions, the barrier to accessing judicial protection can be numerous, including but not limited to:
- the cost of litigation;
- restrictive jurisdictional rules (for e.g. in Ireland you cannot bring class actions),
- overly complex regulations which are not easily accessible by laypersons (Not only are a lot of statutes hard to understand and navigate, legislation in Ireland is generally not officially consolidated – databases such as the
- ineffective enforcement mechanisms, lack of legal literacy, as well as many more
This month, just over 40 years ago, the European Court of Human Rights (ECtHR) handed down a landmark judgment in Airey v Ireland (no. 6289/73, 9 October 1979)
Factual Background of Airey
Mrs. Airey sought a judicial separation from her physically abusive husband. She lacked financial means to obtain this order and in the absence of legal aid could not retain a solicitor. Following the judgment, in 1980 a Scheme of Civil Legal Aid and Advice was established followed by legislation in the form of the Civil Legal Aid Act in 1995. While the court in Airey excluded the existence of a right under Article 6(1) of the ECHR to free legal aid in all civil cases. The court held that an individual should be entitled to enjoy an effective right to access to the courts in conditions which do not deviate from the meaning of Article 6(1). Nonetheless, 40 years on, questions relating to access to justice and legal aid remain very much alive.
Issues arising with Legal Aid
Legal aid in Ireland has been repeatedly criticised for lack of funding and an almost exclusive focus on family and criminal matters. Civil aid applies in both civil and criminal cases, albeit in very different ways. Civil legal aid is generally restricted in the types of cases it applies for, for example, civil legal aid is not available in property disputes, defamation, or non-court-tribunals (like social welfare appeals, residential tenancies board tribunals or the workplace relations commission). In all other cases where civil legal aid does apply, the aid provided is very rarely 100% free.
With regards to criminal legal aid, if you have been charged with a criminal offence and are due to appear in court, you can apply to the judge on the day for legal aid. You will have to fill in a financial means form – if the judge finds that you qualify for legal aid, you will be assigned a solicitor there and then. Criminal Legal Aid Panel of Solicitors and Barristers is not managed by the Legal Aid Board but rather the Courts Policy Division of the Department of Justice and Equality. Therefore, the provision of criminal legal aid is essentially governed and granted by the Courts of Ireland. Fees paid under the State’s criminal legal aid system rose by more than 11.5% in 2018 with almost €65 million being paid out. Criminal legal aid is governed in statute by the Criminal Justice (Legal Aid) Act, 1962.
Criminal legal aid, through the Garda Station Legal Advice Revised Scheme, the Legal Aid – Custody Issues Scheme and the Criminal Assets Burea Ad-hoc Legal Aid Scheme, is free of charge and subsidised by the State for those who are dependent on social welfare or have a disposable income of €18,000 or less per annum. The major difference between civil and criminal legal aid is that civil is subsidised but not free. Applicants are means-tested and pay a fee of €30-€130. Each application is also subjected to a merits test, to ascertain if the case has a chance of success. Civil legal aid is also limited in scope and generally applies to family law matters incl. separation, divorce and custody; issues of debt, will and inheritance. The Legal Aid Board handled 17,803 cases in 2018, an increase of over 600 on 2017 figures. A total of 18,248 applications sought civil legal aid, but not all applicants pursued their matter or were successfully awarded legal aid. Given the limited scope of Civil Legal Aid, as well as lack of spending on the system in comparison to criminal legal aid, the economic downturn disproportionately impacted on the most vulnerable and marginalised groups. The 2019 budget saw the increase in the allocation to Criminal Legal Aid to €12 million while Civil Legal Aid only increased by €500,000. Many staff within the Board have noted the insufficiency of this increase in funding, disallowing the Board to deal with current caseload effectively let alone undertake any review of the current eligibility criteria. There is a general consensus that major reform is required. Most recently, the Honorable Chief Justice, Mr Frank Clarke, noted that in order to allow for effective access to justice, we require a broadening and deepening of the current legal aid system in Ireland.
There still remains a number of serious insufficiencies within Ireland’s civil legal aid system. This is apparent given the limited coverage of the system (with it only applying to a set number of actions, predominantly family law related), as well as the strict requirements of financial eligibility. This lacuna in the system means there is a heavy reliance by a number of individuals on law centres such as the Free Legal Advice Centre, Mercy Law Resource Centre and Community Law & Mediation to name a few. The reality is that the legal system is designed by lawyers for use by lawyers and relies on the predominant presumption that litigants will have legal representation. I would argue, as would many, that access to legal aid is a crucial requirement for access to justice. How can we in a democratic society accept a situation where those who cannot afford to pay for justice should be more easily deprived of their right to a fair trial? From professional experience, it is clear to see that those who are most vulnerable and marginalised in our society are those who are most at risk of encountering legal difficulties, and most in need of an accessible and affordable justice system which is operated in the best interests of all it intends to serve.