November 2022 Law Society Gazette article

Underfunding causes access-to-justice issues The ‘less-than-generous fees’ paid to solicitors and barristers on the Legal Aid Board private practitioner panel need to increase, argues Keith Walsh SC 

pictured at launch of Legal Aid Board Report John McDaid CEO, Chairperson Nuala Jackson SC and Minister for Justice Helen McEntee

Access to justice issues caused by under resourcing of Legal Aid Board

The “less than generous fees” paid to solicitors and barristers on the Legal Aid Board Private Practitioner panel need to increase.

The Minister for Justice Helen McEntee launched the Legal Aid Board’s report for 2021 on 4^th October with the new Chair of the Legal Aid Board Ms. Nuala Jackson SC and Chief Executive John McDaid.

While demand for legal aid is still less than pre pandemic levels, there is a huge pressure building on legal aid for international protection matters which John McDaid described as increasing exponentially. More solicitors were recruited to assist the Board in this area but it is likely to still put pressure on the Legal Aid Board’s already stretched resources. Like many in the legal sector, the Legal Aid Board faces challenges in recruiting staff in 2022.

McDaid paid tribute in the report to the “contributions of those private solicitors who often work for fees that could be in no way described as generous.. and the civil legal aid depends on them.” While waiting times for Law Centres are generally reducing, the waiting time in Smithfield Law Centre is currently 33 weeks while it is 27 weeks in Dundalk and 28 weeks in Cork South Mall. The shortest waiting times are Blanchardstown – 6 weeks and Galway – Francis Street 10 weeks.

Private Practitioner Scheme

The private practitioner scheme for family law cases was established in 1993 when family law cases were much more straightforward. Since then the Legal Aid Board fees have failed to maintain any relationship with the required, especially since the referendum on the voice of the child and the Child and Family Relationships Act 2015 which imposed important duties on District Court Judges with regard to hearing the voice of the child and introduced evidence from expert child assessors and reports. This has greatly increased the workload of the solicitor and barrister without any change to the legal aid board fee. It is completely unacceptable that solicitors are offered an uneconomic rate of legal aid to perform specialist work in the District Court for vulnerable clients and there has been a flight of solicitors from the legal aid family law panel. This lack of take up of the private practitioner scheme erodes access to justice. Notwithstanding the uneconomic legal aid fee and the under resourcing of the Legal Aid Board, it is a testament to the solicitors who do remain in the scheme and the Legal Aid Board that John McDaid was able to confirm that no legally aided person was left without legal aid for an urgent matter in 2021. It cannot be long before the Private Practitioner Scheme breaks down completely unless it is restructured and proper legal aid fees provided.  

Yet again this year, in an €11 billion budget there was no increase in legal aid board fees. Ultimately this failure impacts on access to justice for those who need it most. The failure is not the fault of the Legal Aid Board who cannot increase the private practitioner rate of legal aid without government approval. The Civil Legal Aid Scheme under review by Frank Clarke and his committee and the Law Society, Bar Council, stakeholders and individuals will be invited to make submissions in the coming months. Solicitors who work in this area have plenty to say about the operation of the legal aid scheme and access to justice issues as well as the rate of the legal aid board fees. Family law solicitors on the private practitioners panel have a unique opportunity to make their voices heard to the Civil Legal Aid Scheme Review Group and to improve access to justice.

The Legal Aid Board will be very involved in the new Assisted Decision Making (Capacity) which is expected to be commenced on 21st November 2022 and it is to be hoped that the Board and the private practitioners will be property resourced as this work involves helping and supporting vulnerable adults and their families

Hole in the ground

The Legal Aid Board for many years has struggled due to lack of resources and adequate funding and the Review of the Civil Legal Aid Scheme is a welcome development as both the structure and funding of legal aid needs to be examined and reformed and access to justice improved. This improvement can only be achieved by the provision of resources and if history is any guide, civil legal aid will remain the poor relation as the hole in the ground in Hammond Lane, where the new family law court building is due to be built, illustrates only too clearly.

Keith Walsh SC Solicitor keith@kwsols.iei   

https://www.lawsociety.ie/globalassets/documents/gazette/gazette-pdfs/gazette-2022/november-2022-gazette.pdf