Briefing on the Civil Legal Aid Review Minority Report
24 July 2025
The Minister for Justice has published the reports arising from the Review of the Scheme of Civil Legal Aid. FLAC campaigned for the review, which is the first comprehensive examination of civil legal aid in Ireland in almost 50 years. The Review Group was chaired by former Chief Justice Frank Clarke SC. Eilis Barry (FLAC Chief Executive) was the FLAC nominee on the Review Group. She submitted a minority report to the Minister which was joined and supported by Review Group member Professor Thomas O’Malley SC.
The minority report adopts a ‘principles-based approach’ to legal aid, which include the requirements of international and European law, equality and non-discrimination, best practice and, above all, access to justice. It includes an outline of the present legal aid crisis, an analysis of the existing scheme of civil legal aid and its shortcomings, proposals for reform and an analysis of the majority report
Summary of Minority Report analysis of the current Civil Legal Aid scheme
Ireland’s system of public legal assistance is in crisis. The civil legal aid (‘CLA’) scheme which is administered by the Legal Aid Board (‘LAB’) is failing to meet significant legal need, especially among individuals and groups who live in poverty, extreme poverty and/or who experience disadvantage and discrimination. The scheme cannot meet this need because of its design, including its limited functions, narrow scope, rigid means and merits test, service delivery models, and under-utilisation of some of its functions and the dominance of family law in its casework. Its chronic under-funding and under-resourcing results in its inability to hire and retain staff, an over-reliance on private practitioner panels (where there is a low take up due to the low level of payment), critical legal aid deserts in some areas, significant delays to get a first appointment to see a solicitor, and an inability to pay for essential child welfare and other vital reports. All of this could act as a source of low morale amongst LAB staff.
No fewer than eight international and European independent human rights monitoring bodies have criticised the current CLA scheme. Their many concerns cover the narrow scope of the scheme, the lack of representation before quasi-judicial bodies (QJBs) which deal with access to vital public services such as housing and welfare (and socio-economic rights more generally), the limited extent to which immigration and asylum matters are covered by the scheme, delays in accessing the scheme, the “restrictive financial eligibility criteria”, and the financial contribution requirements and legal aid for victims of domestic violence.
The scheme is also likely to be contrary to European and/or EU law in at least four respects: its highly restrictive means test, the strict merits test, the blanket exemptions (including on legal aid before QJBs), and the prohibition on NGOs accessing legal aid for environmental cases. Failure to comply with EU law raises financial and reputational risks for the State.
Summary of the Minority Report Recommendations
The minority report states that “comprehensive, meaningful reform is doable, practical and cost effective with the service delivery infrastructure already in place with LAB Centres, the Citizens Information Board (‘CIB’) and its Citizens Information Centres (‘CICs’) all around the country and the existing Independent Law Centres (‘ILCs’) serving as models for what can be achieved…”
It recommends a complete reorientation of civil legal aid services with an emphasis on general and targeted preventative services so that people, in particular disadvantaged individual and communities, will have access to legal information, advice and advocacy as early as possible so that disputes and/problems will be resolved and not escalate.
General early and preventative services include public awareness/education campaigns about legal rights and the availability of public legal assistance (delivered through a diverse range of media and in-person, for example, via mobile units). General services also include the provision of legal information through pamphlets, websites, web chat services, and telephone lines. LAB Law Centres should work in collaboration with local Citizens Information Centres to provide legal information, early advice and advocacy.
Targeted early and preventative services are as important and vital as general services. They will need to be fully mainstreamed into the new CLA system. Services need to be brought to where people are by locating services in the Courts, tribunals, libraries, primary health care services, family resource centres, places of detention, and in residential institutions and nursing homes. People and communities experiencing high levels of deprivation, victims of domestic violence, minority ethnic and migrant communities, people with disabilities, Travellers, Roma, people living in residential care, people in direct provision, people in prison, the families of people in prison, people who have recently left prison, young people leaving care, people with alcohol and drug dependence, and Litigants in Person (LIPs) all need to have ready access to legal information, early legal advice and advocacy where they are located.
Targeted early services should be delivered through ‘collaborative service delivery models’ i.e. the provision services alongside housing, homelessness, probation and welfare services, as well as through health justice partnerships and the use of ‘legal health checks’ (which equip non-legal professionals to identify legal needs and issues). There should be a ‘no wrong doors’ approach with co-location and a holistic approach ensuring that there are as few ‘doors’ as possible.
A network of Community Law Centres in the areas of greatest deprivation and targeted/specialised legal services and law centres should provide information, advice, advocacy and community legal education tailored to the needs of cohorts/communities which they serve.
Trade Unions, relevant NGOs and community organisations should receive training to equip them to provide information and to undertake non-legal advocacy.
CICs should have an enhanced capacity to provide information and advocacy on rights before bodies like the WRC, RTB and in social welfare appeals.
This will require immediate legislative changes to the statutory functions of the LAB and the CIB, including expanding the mandate of the LAB to include the provision of early general and targeted legal information and expanding the mandate of the CIB to provide advocacy in non-complex case before bodies like the WRC and in social welfare appeals. It will also require a number of statutory bodies to work collaboratively together.
Resources: It has to be appreciated that as well as being a fundamental right, access to justice is an investment and has to be properly resourced. There is a social and economic return for such an investment and reduction in the ongoing costs of not ensuring access to justice. Not providing legal aid is also costly.
The LAB should be funded to achieve the transformation envisioned in this report and adequately funded on an ongoing basis. Specifically:
- LAB Solicitors should be paid at the same rates as civil service lawyers in bodies such as the Chief States Solicitors Office.
- The LAB should have a budget for the reports necessary for the fair disposable of any case in which it is providing legal representation including the full cost of ‘section 32’/voice of the child reports and other essential reports in family law and other cases.
- There should be an increase in the rates paid to those on private practitioner panels in line with the rates received by those on panels for the mental health tribunals. These should be reviewed on a periodic basis.
Scope & Eligibility: The limitations on the scope of the scheme of civil legal aid (i.e. the areas of law and the types of cases where legal aid may be provided) are contrary to European law and should be removed in their entirety. There should be no restrictions on the areas of law where legal representation may be accessed through the scheme
Means: A means test should only apply for the purpose of ensuring that people who can afford private legal representation do not avail of the CLA scheme for the purpose of obtaining representation. Any means test should be responsive to the actual cost of potential proceedings with a lower means test in place for cases heard by higher (and more expensive) courts.
Allowances should be available in respect of reasonably incurred, fully vouched costs in areas including accommodation, childcare, the cost of disability, transport to and from work, and the payment of insurance premiums for cars and houses.
People who receive legal assistance should not have to pay a financial contribution save as part of a system of ‘tapering’ which should be put in place to eliminate ‘cliff-edges’ in access to public legal assistance services.
The means test should be reviewed and updated on an ongoing basis having regard to a range of benchmarks including the cost of living and the living wage.
The provision of legal representation should include the provision of any relevant and necessary reports.
Merits: Where a merits test is applied, there should be no distinction based on the forum where a case will be heard or the extent of the services sought. The single merits test which may be applied should be based on an assessment of the potential benefits of legal assistance being provided rather than on the basis of a strict win/lose paradigm. Community, specialised and targeted services will prioritise cases that impact on their communities.
The minority report also includes recommendations on applications and appeals, diversity and inclusion, reducing legal need, simplifying court rules, forms and procedures, pro bono, and clinical legal education.
Summary of the Reasons for a Minority Report: Agreements and Disagreements with the Majority Report
While it is welcome that the Majority report names access to justice as an overarching principle, its text and recommendations do not sufficiently reflect the fact that access to justice is both a fundamental right and a vital social and economic investment that will reduce the social and economic cost of lack of access to justice. The absence of ‘best practice’ as a guiding principle is regrettable.
Overemphasis on “Limited Resources”
The Majority report does not sufficiently reflect that the system of public legal assistance is in crisis and its recommendations do not respond with sufficient urgency and detail to that crisis. The Majority report has an overemphasis on “limited resources” being available to fund legal aid services which is not required by the terms of reference. This overemphasis is woven throughout the Majority report and acts as a major constraint and dominating factor in its recommendations: the Majority report fails to explicitly state that the LAB is chronically under-funded and under-resourced.
The Majority report fails to recommend that the salaries of LAB solicitors should immediately be brought in line with solicitors employed in the Chief State Solicitors Office (CSSO) and the Office of the Attorney General. It also fails to recommend an immediate increase in the fees paid to private practitioners and there is no explicit immediate recommendation for the LAB to be funded to provide essential reports such as section 32 child welfare / ‘voice of the child’ reports in family law cases.
Financial Eligibility
While any long overdue increase in the means test is welcome, the Majority report’s short-term recommendations to increase the disposable income limit (from €18,000 to €23,500) and to increase allowances are wholly inadequate. If implemented, it will mean that some people on the minimum wage with a net annual income of €24,924 and on what can be descried as a ‘living wage’ with a net income of €26,261 who are not entitled to sufficient ‘allowances’ will likely remain ineligible under the new limit. The maintenance of the contribution requirement will mean that people with a disposable income of less than €17,998 who may be regarded as at risk of poverty will have to pay a financial contribution.
If implemented, a significant cohort of people will continue with no effective access to justice due to inability to access legal aid or afford a private solicitor. Given the difficulties in achieving change in legal aid, and the lack of clarity in other recommendations, it is also likely that the increase in the means test will constitute the only change for some considerable time.
FLAC welcomes the majority report’s recommendation that victims of domestic violence should not be subject to any means test and believes that it needs to be implemented immediately.
Matters left for Further Reviews
Another overarching concern is the number and extent of core issues that have been left for further review or consideration, which are substantial enough in themselves to constitute a further comprehensive review. These include a structural review of financial eligibility, the development of a new merits test, the resourcing of the LAB to administer the current scheme, the use of discretion in relation to eligibility for legal aid, cost-benefit analyses of the proposed new elements of the scheme and engagement with the ILCs and CIB regarding their participation in the future scheme. Having set up an independent review group to make recommendations, it is regrettable and unusual that some of the tasks are being given back to the Department for review thus removing the independence that the review group was supposed to provide.
Lack of Detail on new Preventative Services
Despite the review’s own research and submissions received, it would appear from the tentativeness and conditionality of the Majority report recommendations, and the repeated emphasis on keeping the current services of the LAB going and limited resources, that the LAB will not be radically reformed. It also seems to be envisaged that proposed new elements will be carried out by other service providers such as the CICs and the under-resourced and underfunded ILCs. It also seems to be envisioned that the ILCs, if they are part of the new regime, will have to become more like the LAB law centres (in terms of the application of the means and merits test to achieve “consistency”).
The proposed ‘front-loading’ of the system of legal assistance in favour of early intervention and advice is welcome. However there is insufficient detail, a lack of clarity and tentativeness about what new preventative services are actually being proposed and who is going to deliver them that seriously undermines this important and welcome recommendation.
The emphasis in the Majority report seems to be more about ‘triaging’ potential users out of the system as early as possible, instead of developing the services which are actually needed to deal with issues at an early stage and devising means of bringing those services to the users. There is also an emphasis on piloting new measures for the sake of identifying those which provide value for money and contribute to reducing the overall CLA budget, rather than ongoing monitoring for effectiveness. There also appears to be a rigidity about what is being proposed and a ‘one-size-fits-all’ approach is evident in the repeated references to “consistency”.
There is a striking and worrying over-reliance on mediation. While it should be free, accessible and available, mediation should not be presented as the primary or preferred model of dispute resolution and central plank of the new system.
Targeted Services
The need for targeted services for disadvantaged groups and individuals is recognised but any new services or functions seem to be treated as an ‘add-on’ rather than a central plank and aim of the new system. Seeing such groups as an add-on perpetuates exclusion. It is significant, frankly baffling and deeply regrettable that a separate structure for civil engagement with minority groups is being recommended, rather than the mainstreaming of targeted services as a core part of the new system.
A fundamental area of concern is the failure to explicitly recommend the establishment of a network of Community Law Centres in areas of high deprivation (which is a core unimplemented recommendation of the Pringle Report), along with the establishment of properly resourced specialised law centres. The value of the work of the ILCs is recognised. However, there is a failure to recommend that the existing ILCs should be adequately resourced and supported, notwithstanding that they are proposed as being a core part of the new system.
Oversight Body: The need for a new separate statutory body in this area is questionable. The proposed new Legal Aid Oversight Body (LAOB) does not appear to be given any executive function to enable it to effect meaningful change and at best will act primarily as an advisory service to the Department on what changes are required but leaving it to the Department to effect that change. Re-designing what we have to be more effective would be a far better use of resources.
Scope of the Scheme: The Majority report recommends that the blanket exemption on legal representation before Quasi-Judicial Bodies (QBJs) should be removed. This is welcome. However, there is a significant lack of clarity about the new system which is proposed. The recommendations on the merits test are unclear and appear to provide for different merit tests for different fora. This is unnecessary and unjustified. It is a real cause of concern that it is envisaged that “only, in a limited number of complex cases full representation may be necessary before bodies like the WRC”. The Majority report frequently refers to the QJBs operating in line with their so-called “intended purpose” and seemingly presumes that QJBs may operate in an informal and accessible manner, notwithstanding that the Zalewski judgment requires that the standard of justice in the WRC cannot be lower or less demanding than in the Courts.
Matters not Addressed: The particular needs of lay litigants and the need for legal assistance for NGOs (especially in environmental law cases) are not subject to any specific recommendations. Issues raised in the consultation process about the need for simpler application forms and a more transparent appeals process are also not addressed.