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Column: Yes, State legal spending is significant – but it’s an investment in our democracy

What distinguishes a democracy from other systems is a fair balance between the might of the State – which has very substantial legal resources at its disposal – and the capacity of citizens to challenge its power, writes Noeline Blackwell.

Noeline Blackwell

FIGURES REVEALED YESTERDAY show that about €40 million has been paid out to barristers in private practice by the Attorney General’s office in order to ensure that the State is properly defended in proceedings issued against it.

Ensuing comment has inevitably been about the small number of barristers who have profited with very substantial fees. But the figures are also noteworthy for indicating the price that we pay for a system that upholds the rule of law. We should remember that in addition to the fees mentioned, the State also pays staff in its Attorney General’s office and the office of its Chief State Solicitor to instruct those barristers.

As the Irish Times article points out, the State also pays substantial sums to the Director of Public Prosecutions and her staff and to the barristers appointed by them. In addition, the HSE also instructs solicitors and barristers and pays money to them. Added to that, Gardaí are paid for prosecuting in court.

Maintaining our democratic legal system

All of this money, paid out year after year, is the cost to the State of maintaining a legal system where it can prosecute wrongdoing and defend itself where it is accused of wrongdoing. Even though legal fees to solicitors and barristers have shrunk since the economic crisis started, the amount paid by the State for the protection of its citizens and for its own protection is very substantial indeed.

This is the case in every state all over the world. Each state pays for a defence of its system and the enforcement of its laws. What distinguishes a democracy from other systems is whether there is a fair balance between the might of the state – which has very substantial legal resources at its disposal – and the capacity of citizens of that state to defend prosecutions against them or to challenge the state where wrongs have been done to them. It is important – even for well-protected and law abiding citizens, who hope never to interact with the state as prosecutor or defendant – that a system exists to ensure that their voices are capable of being heard if the need ever arises to raise them. The absence of such a system gives rise to fears of abuse of power by the powerful in the state.

Legal aid

This, then, is at the heart of our legal aid system. Legal aid exists to give a voice to those who need help to mount a proper defence against serious charges by the state or other individuals, or to try to right a wrong. As a non-governmental organisation which seeks to promote the equal right of access to justice of all people, FLAC has repeatedly raised the alarm when we have seen our system failing, particularly in areas of legal aid outside of the criminal courts. FLAC’s own legal assistance system – in which volunteer lawyers run legal clinics in partnership with Citizens Information Centres or other resource centres – allows people to get basic first-stop legal advice quickly and for free. However it is not, and was never meant to be, a substitute for a properly resourced legal aid system where people can get the advice and assistance they need to have their voices heard and get legal redress.

The state system which does provide such legal aid for non-criminal matters, principally through the Legal Aid Board, depends on a network of small legal offices, one per county at most outside Dublin and Cork, with some counties having no office at all. In recognition of its importance, the budget of the Legal Aid Board has been maintained over the past four years; however, it did take a serious cut at the start of the recession, and the fact is that a lot more people need help on that unchanging budget.

The Board is therefore extremely stretched despite the best efforts of its staff and long waiting lists have developed leading to frustration, court delays and genuine suffering. The delays and limitations of that system also risk undermining the basic rationale for legal aid – that access to justice be available on an equal basis to those who need it.

Accessing the law more fairly

Rumour has it that the Legal Services Regulation Bill is due back for further discussion by the Oireachtas shortly. The last incarnation had much to say about how to calculate legal costs and regulate the legal profession. It introduced the problematic concept of cross-profession partnerships which seems to have given rise to heated Cabinet discussions. It had little to say, however, about reform of access to legal services to advance the human right and democratic principle of access to justice.

Any reform that fails to address how people lacking sufficient financial or other resources can access the law more fairly would be a great shame and a wasted opportunity. In times when the national agenda is dominated by harsh macro-economic policies, those in power need to remember and cherish the democratic principles that permit them to be there. Let democracy underpin the reform of legal services – and the provision of legal aid too.

Noeline Blackwell is Director General of FLAC. Prior to this role, she worked in general practice as a solicitor, with a particular interest in family law and in human rights law in general, refugee law in particular. She is a former chairperson of the Law Society’s Human Rights Committee and of the Irish section of Amnesty International. Noeline is a trustee of Front Line, the Dublin-based international foundation for human rights defenders at risk, and sits on the boards of the Immigrant Council of Ireland, the Irish Refugee Council and the Citizens Information Board.

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