Month: August 2011

The Mandatory Samaritan?

For background, see post on Irish good Samaritan law.
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Criminal Law Practitioners Union in the works

People often gripe about the free legal aid system but, to my mind, it’s part of the price we pay for the Republic and its Constitution, which

seek[s] to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured [and] true social order attained.

Some people don’t like that the system exists at all. Others dislike the cost. A small number of lawyers make a lot of money from the legal aid budget, but they tend to work exclusively in criminal defence. And they work hard: criminal defence is far less profitable than many other areas of law, including areas that consume far greater amounts of taxpayer funding.

An email has been circulated among criminal defence lawyers proposing a Criminal Law Practitioners Union (CLPU) to lobby and negotiate with the Government on the system of criminal free legal aid. The email says that, when the next round of cuts are implemented, the fees paid for criminal legal aid will have been cut by up to 50% of their 2007 level.

Cuts of this magnitude will put a large number of [criminal legal aid lawyers] out of practice and seriously undermine the fair and proper administration of justice in criminal law. Cuts of this magnitude are unfair and unjust and impose a greater burden on us than on any other ‘public service sector’.

Two points are involved here: the public interest argument and the private interest argument. The latter doesn’t interest me and will not find much sympathy with the public. But this issue is not about incomes: lawyers are also professionals who want to represent their clients’ interests, not just in court but before they reach it.

For example: it has long been the practice of the Department of Justice to pay defence counsel the same fee as the prosecution. Equality of arms is an important principle, but the Department recently abolished it for criminal trials and imposed a 10% cut on fees paid to defence counsel (ie. 10% less than what is paid to prosecution counsel by the Director of Public Prosecutions). [Edit: I agree with this letter-writer to the Irish Times. Cuts should be equal.]

Quite obviously the only reason that we are very much the ‘poor relations’ in the courts system is because our clients are voiceless and so are we. (My emphasis)

The email points to an interesting comparison which contextualises the legal aid budget: the legal aid budget is around €57 million annually, whereas the annual bill for legal fees for a single State agency, the HSE, is around €30 million. Up to May 2011, Arthur Cox had earned over €11 million advising the Government on the banking crisis alone.

The email seeks support for the CLPU to negotiate terms and conditions of a contract with the Department of Justice for legally aided criminal defence. I would expect that the CLPU will run into competition law issues but the email states that nothing will be done to distort competition.

The email suggests a picket on the courts as a final measure to protest further cuts. This will inevitably be the focus of headlines and the move would be reported by the media as a strike to protect the income of lawyers, rather than a strike to protect the interests of justice. A serious public interest issue is at stake and is unlikely to receive the quality of discussion and debate regularly achieved in the UK.

(As I finalised this blog post, this article published on the Evening Herald website. The headline provides a taste of the tone of coverage to come.)

The timeframe for action is tight, and apparently over 100 lawyers have already indicated an intention to join the CLPU (around 30 of whom are solicitors).

In the meantime, it remains unclear what has become of the last government’s mad proposal to move responsibility for the criminal legal aid system to the Legal Aid Board. However, Brendan Howlin’s Ideas Campaign-style search for solutions has apparently generated the suggestion that inexperienced law graduates “be deployed” to the legal aid system.

New Irish law on the liability of good Samaritans

It had seemed, in the crisis years of 2008 to date (one assumes the crisis has not yet passed), that the Irish Government was incapable of addressing any non-economic issue facing the State. There is, of course, more to a nation than banks and bonds, so it is refreshing to see some more items crossed off the legislative to-do list by the new Government.

Recent Irish governments have been into the habit of introducing “miscellaneous provisions” legislation: acts which contain a series of unconnected amendments to existing laws. Usually, the amendments have been on the long finger for some time or have arisen as a matter of urgency. Such legislation is often passed just before the Summer recess.

The Civil Law (Miscellaneous Provisions) Act 2011 is such a law and covers diverse areas of the law like private security services, equality, family law, the sale of alcohol, rights of way, personal bankruptcy, tribunals of inquiry and eligibility for appointment as a taxing master.

One area covered, which was expected in a stand-alone act, is the law on good Samaritans. Up to now, there was no legislation on the issue. A private members bill was introduced in 2005 by then-opposition TD Billy Timmins (FG, Wicklow) which spurred the Government to request a report from the Law Reform Commission.

That report was published in 2009 and Mr. Timmins (still in opposition) returned with a new private members bill. His 2009 proposal was, in fact, the law as proposed by the Law Reform Commission and by introducing it to the Oireachtas before the Government some additional pressure was exerted to act. Legislation was expected last year but, as with many areas of law and policy, one assumes supervening events disrupted the legislative programme and the last government never got around to it.

The 2011 Act essentially provides that good Samaritans will not be personally liable for anything done while assisting someone ill, injured or in danger. Volunteers will be similarly protected from liability when carrying out volunteer work. Of course, there are exceptions and, for example, the protection from liability is lost in the case of malice or gross negligence.

The changes do not introduce into Irish law a duty to intervene. This is in line with the recommendations of the Law Reform Commission, who concluded that, in Irish society, the duty to intervene was of a moral rather than legal quality and essentially should remain that way.

A duty to intervene can arise under Irish common law where a particular relationship exists between the parties which would justify it (Chapter 2C of the LRC report addresses this area). The Law Reform Commission recommended introducing a statutory duty of care on the part of volunteer organisations, but the 2011 Act only requires that, when considering  whether a volunteer organisation owed a duty of care to someone, a court must consider whether it is just and reasonable to impose a duty “having regard to the social utility of the activities concerned.”

The 2009 private members bill contained the Commission’s proposed duty of care for volunteer organisations so it is not clear why the Government did not incorporate that wording.

Nevertheless, although lawyers are not generally fans of miscellaneous provisions legislation, the Government must be commended for acting on the issue. Through Mr. Timmins, Fine Gael have highlighted the foot dragging on this issue and have now addressed it within a reasonable time of taking office.