Chief Justice says global events show “fragility” of independent justice system

Chief Justice Donal O’Donnell describes the review group on civil legal aid as a very positive step

Developments in the US, eastern Europe and the UK show the concept of “a dispassionate and independent justice system upholding the rule of law is more fragile and vulnerable than any of us might have imagined even a few decades ago”, the Chief Justice has said.

Chief Justice Donal O’Donnell made the remarks in Dublin when launching the annual report for 2021 of the Free Legal Advice Centres (Flac).

Part of the functions of pressure groups like Flac was to make those holding positions such as his uncomfortable and to hold the system “to the highest standards”, he said.

The system “can be not only frustrating and cumbersome, it can also appear like a monolith”, he said. “But criticism should be fair and recognise the many people of goodwill and the value of a mature and robust and reasonably stable system because, when we look around the world, whether to the west to the US or to eastern Europe, or to developments in our nearest neighbour, I think we can see that the concepts of dispassionate and independent justice system upholding the rule of law is more fragile and vulnerable than any of us might have imagined even a few decades ago.”

There were times when the justice system needed to be challenged and criticised but there were also times when it needed to be supported and defended, he said. “If ever there is a time when [we] have to face those challenges here, I hope, and believe, that Flac will support and defend our system of law.”

The Flac report illustrated what its chief executive, Eilis Barry, described as “an ongoing crisis in unmet legal need” in Ireland. There were 13,147 calls to its information line in 2021, the highest number since 2015, with most seeking advice on family or employment law issues while almost half of Flac’s new case files for 2021 involved claims by Travellers regarding housing and discrimination.

The increase in calls represented “the tip of the iceberg” because Flac did not have the resources to answer every call, Ms Barry said.

She welcomed the recent Government announcement of a review group on the civil legal aid system.

The Chief Justice also described the review group as a “very positive” step, adding he was very happy to continue the work of the Chief Justice’s access to justice working group, established last year by his predecessor Frank Clarke.

He was honoured to launch the Flac report, he said. It impressively catalogued work done very well by the organisation but was also evidence of “a monumental failure” concerning legal aid.

The detail of the report for 2021 was “eloquent testimony” to the continued demand for voluntary legal services whether in person, phone support, pro bono action, public interest litigation, Traveller and Roma representation and the promotion of education, he said.

The “dramatic” changes to the civil and criminal legal aid systems in the UK strongly suggest the trend was “moving very far away from a model which sees legal aid as a component of a post-war welfare state and an entitlement of every citizen”. At the same time, the Flac report showed the need for legal assistance went well beyond the traditional model for providing advice in a room or representation in court.

The problems of access to justice were multifactorial; there was no single solution and a patchwork of small changes was necessary to effect some improvement, he said.

There would always be a place for the long tradition of Irish lawyers doing work pro bono or on a “no foal, no fee” basis, he added, and always a place for an organisation like Flac providing legal advice and assistance, education and access to justice more generally.

Because legal professionals were drawn from a group in society which was different from the groups experiencing the most need for the legal aid service, it was a real benefit to volunteer lawyers and the legal system more generally that they, and it, were required to engage with people sometimes suffering very severe disadvantages “and seeing and understanding at first hand what it means to be deprived of access to justice and access to legal aid or assistance”, he said.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times