My Proposal to Extend the Parameters of Civil legal Aid to Cover Property Interests
Updated: Oct 19
I propose that the parameters for civil legal aid are widened by providing for property disputes and interests in land. Which are not currently covered by legal aid. [i] This reform is justified in a legal context for several reasons.
Firstly, legal aid is already offered in property cases in many jurisdictions, which proves this proposal is not risky since it has been successfully implemented in countries, such as: Australia, Finland, the United States of America (USA), and the United Kingdom (UK).[ii]Notably, the UK introduced specific legislation[iii], that specifies that housing, homelessness, and eviction issues are covered by civil legal aid.
Secondly, this reform is justified by the need for Ireland to solve its’ housing crisis. Which is increasingly rapidly for example, in 2020 over 8,200 people were homeless and is likely to escalate in the future if the problem is not addressed.[iv] There is chaos with short term rentals, lack of suitable housing, rising house and rent prices and high eviction rates. Therefore, it is our nation’s moral obligation to help protect the most vulnerable people in society.[v] Access to the courts is denied by the high cost of property litigation.[vi] Since property and interests in land are excluded from the remit of the Legal Aid board by various legislation.[vii]
This reform takes priority over other legal aid reforms because it is more important to first widen the base for legal aid than to increase income threshold. So, the people with the lowest income in Ireland can access it in all circumstances since they need it the most.[viii] Similarly, extending legal aid to property cases takes priority over, employment cases because the workplace commission already offers many services for disputes. Also, it takes precedence over defamation cases because of the current housing crisis.
Argument 1 – Implementing this reform will be too costly.
I acknowledge that this reform will be expensive.[ix] However, I argue that costly justice is better than no justice. This reform is beneficial because are more likely to look for work when they feel safer and their housing is legally protected. Which results in more tax revenue for the state and an overall higher standard of living in society.
Additionally, this reform is beneficial because offering legal aid in property cases would act as a deterrent to malpractice because landlords who exploit tenants are more at risk of getting prosecuted.[x]
Argument 2 - Isn’t this model open to abuse?
No, it has many safeguards. For example, their income must be €18,000 or below per year and one can only have disposable capital of less than €100,000 excluding the family home, to avail of legal aid.
Protections for the state finances are also included, one must also pass the ‘Merit test’ and have ‘reasonable grounds for instituting, defending or being a party to the proceedings.’[xi] On top of this, one must contribute to any legal fees incurred e.g., pay the first €200 depending on income. Which deters abuse of the system.[xii]
Argument 3 – The Mercy Law Resource Centre and Associated Charities provide legal aid for homeless people, is that not sufficient?
No, MLR[xiii] centres are not state funded, are largely run by volunteers and have a minimum two-year waiting list. Thus, have limited availability and resources so, many people go unrepresented, or justice is delayed. MLR’s services cannot make up for the deficit caused by certain sectors of litigation not being covered by legal aid.
Finally, my reform will be implemented through a set process alongside legislative amendments that permit legal aid to cover interests in land and property. To ensure that the bill is drafted correctly a small representative citizens assembly will be held. The Oireachtas must also work closely with FLAC[xiv] centres and Liaise with PILA[xv] to make sure professional input is heard. Other incentives may be pushed such as promoting pro-bono work in law firms and lobbying for more funding for legal aid so that these reforms can be financed and staffed.
Conclusion – I believe that costly justice is better than no justice and that the best thing that we can offer victims of homelessness, extortion in relation to property and unfair evictions is representation and compensation. By implementing my reform, we are also preventing this problem from reoccurring in the future through deterrence of malpractice. Legal aid is supposed to address the inequality vulnerable individuals face. Its purpose is to ensure due process. Therefore, it is in the public’s best interests to extend legal aid to cover interests in property.
[i] Civil Legal Aid Act, 1995, s. 28 9 (a) [ii] UNODC, ‘Global Study on Legal Aid Country Profiles’ (2016) https://www.unodc.org/documents/justice-and-prison-reform/LegalAid/GSLA_-_Country_Profiles.pdf >accessed 20 February 2021. [iii] 2013 Housing & Debt Standard Civil Contract [iv] < https://www.focusireland.ie/resource-hub/about-homelessness/#:~:text=There%20were%208%2C200%20people%20homeless,monthly%20figures%20started%20being%20published. > accessed 21 February 2021. [v] Article 40 < http://www.irishstatutebook.ie/eli/cons/en/html > last accessed 2nd March 2021. [vi] FLAC ‘Access to Justice - A Right or a Privilege? A Blueprint for Civil Legal Aid in Ireland’ (2005) [vii] The Landlord and Tenant Acts, 1967, The Residential Tenancies Act 2004, The Married Women's Status Act, 1957, The Family Home Protection Act, 1976, The Family Law Act, 1981. [viii] Editorial ‘The Irish Times view on the legal system: access denied’ (2019) The Irish Times. < https://www.irishtimes.com/opinion/editorial/the-irish-times-view-on-the-legal-system-access-denied-1.3811367 > accessed 26 February 2021. [ix]Alastair Gray, Neil Rickman and Paul Fenn ‘Professional Autonomy and the Cost of Legal Aid’ (1999) Oxford Economic Papers, Vol. 51 pp. 545-558 < https://www.jstor.org/stable/3488570 > accessed 25 February 2021. [x]The Irish Times ‘We are living in hell with a terrible landlord. We don’t even have a fridge’ (2020) < https://www.irishtimes.com/life-and-style/homes-and-property/we-are-living-in-hell-with-a-terrible-landlord-we-don-t-even-have-a-fridge-1.4271838 > accessed 26 February 2021. [xi]https://www.citizensinformation.ie/en/justice/legal_aid_and_advice/civil_legal_advice_and_legal_aid.html accessed 25 February 2021. [xii]Alexy Buck and Graham Stark ‘Simplicity versus Fairness in Means Testing: The Case of Civil Legal Aid’ (2003) Fiscal Studies Vol. 24 pp. 427-449. < https://www.jstor.org/stable/24438429 > accessed 25 February 2021. [xiii] Mercy Law Resource centre < https://mercylaw.ie/ >accessed 2nd March 2021. [xiv] Free Legal Advice Centres. < https://www.flac.ie/ >accessed 20 February 2021. [xv] Public Interest Law Alliance < https://www.pila.ie/ > accessed 20 February 2021.
About Sarah Jones: Sarah is a 4th year UCD bachelor of civil law student, who is committed to a career in human rights law.