The Irish High Court has ruled that civil legal aid can only be granted to ‘natural persons’, excluding ‘legal persons’ such as a non-governmental organisation.
Friends of the Irish Environment (FIE) applied for civil legal aid in 2018 to bring judicial review proceedings against the adoption of the National Planning Framework and National Development Plan. The application was refused due to the applicant being an organisation rather than a person. The judicial review ultimately proceeded and was unsuccessful in the High Court, and is now under appeal.
FIE sought to challenge the refusal of legal aid, arguing that an organisation, as a legal person, was ‘a person’ for the purposes of the Civil Legal Aid Act 1995. FIE argued that Article 47 of the Charter of Fundamental Rights (on the right to an effective remedy) and Article 9(4) of the Aarhus Convention (environmental law remedies must not be prohibitively expensive) imposed an obligation to interpret the 1995 Act so as to include legal persons in the definition of persons.
In interpreting the 1995 act, Justice Niamh Hyland in the High Court examined the intention of the Oireachtas at the time the legislation was adopted, and through the lens of the present day. Based on a construction of the reference to ‘person’ or ‘persons’ throughout the 1995 Act, considered in the context of the Act as a whole, Judge Hyland concluded that where the legislature referred to ‘person’, it intended to refer only to natural persons and not legal persons. Judge Hyland also pointed to the Civil Legal Regulations 1996 adopted when the Act was first enacted, which appear to refer to natural persons.
Further, the Court looked to the Act’s legislative history, which followed the European Court of Human Rights (ECtHR) judgement in Airey v Ireland, stating “the adoption of the 1995 Act was at least partly to render Ireland compliant with its obligations under the ECHR by providing civil legal aid to natural persons to vindicate their human rights”.
Regarding what the Charter of Fundamental Rights requires in terms of civil legal aid for legal persons, the Court followed jurisprudence of the Court of Justice of the European Union and the ECtHR in Airey in finding that there was an entitlement to an effective remedy rather than an entitlement to obtain legal aid. Judge Hyland was of the view that where the conditions of legal aid limit the right of access to the court such that the core of that entitlement is restricted, then those conditions may be incompatible with the right to legal aid. As such, any entitlement to legal aid is highly fact dependant and no general entitlement exists. Here, the case was not made that in the FIE litigation a lack of civil legal aid made it impossible for the applicant to exercise its right of access to the court or that it was denied an effective remedy.
In respect of the Aarhus argument, the Court found that given the special costs regime applicable in Ireland to all persons litigating certain environmental matters, including the applicant, and the evidence provided by the applicant on affidavit as to its access to legal representation, it was not prohibitively expensive for it to access judicial review procedures. Judge Hyland highlighted that FIE was an “active litigant who has been in a position to bring a significant number of environmental cases”. Therefore, in order to achieve the result sought by Article 9(4) in this respect, the Court held it was not necessary to construe the Act as covering legal, as well as natural persons, including FIE.
Click here for the judgement in full.