Debated in Parliament on 4 Feb 2013.
Order for Second Reading read.
Mdm Speaker, I beg to move, "That the Bill be now read a Second time."
Mdm Speaker, access to justice is one of the cornerstones of our society. We may have the best laws, the best courts and the best system, but all that would be lost if they cannot be accessed by persons in need.
However, like all things, there is a cost to legal services, and not everyone can afford such services. It was with this in mind that the Legal Aid and Advice Act was originally enacted back in 1956, to ensure access to justice. That objective remains as relevant today as it was then.
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The Government is conscious that there are those with meritorious legal claims or defences but who are unable to afford lawyers. The Government has also taken into account the rising costs of living and its impact on a person's ability to afford legal services. Over the years, the Government has periodically updated the means test to take into account the current costs of living. Past reviews were conducted in 1995, 2001 and 2007. The latest review was completed in 2012.
Following the latest review, as well as taking into account feedback from Members of Parliament, the Government considers that the proposed amendments are necessary to facilitate greater access to justice by those in need. The proposed amendments take into account the current cost of living, and also expand the coverage of legal aid to include more vulnerable applicants.
The Bill does three things. First, it expands the general means test for legal aid under the Act. The effect of this is that it will allow more people to be covered by legal aid. Second, it expands the discretion of the Director of Legal Aid to depart from the general means test in exceptional cases. The effect of this is that it will allow another potential group of people to benefit from legal aid who would not fall under the general test. Third, it improves the general administration of legal aid.
I will now take the House through the main amendments of the Bill. The most significant clause in the Bill is clause 21. It amends the means test for legal aid prescribed in the Second Schedule of the Act.
Under the Act, a Singapore Citizen or Permanent Resident (PR) meets the means test for legal aid if his annual disposable income is $10,000 or below and his disposable capital is also $10,000 or below. It is a double-barrelled test, meaning you have to meet both the income test and the capital test. The applicant's annual disposable income is calculated by adding his annual income with that of his spouse and deducting the permitted deductibles, for example, his CPF contributions and expenses for daily necessities. An applicant's disposable capital is calculated by taking the value of all his assets, for example, property, savings and other assets and deducting therefrom the value of permitted deductibles, for example, his HDB flat, if that is used as his family home.
The means test is, therefore, structured to look at the resources which are reasonably available to the applicant to fund his legal needs. The applicant's disposable income should, therefore, not be confused with the applicant's gross income. His disposable capital does not include assets which we cannot
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reasonably expect the applicant to liquidate, for example, the home in which he lives, up to a certain value.
Under the proposed amendments, we will expand coverage of the general means test by expanding the existing deductibles for both income and capital, and by creating new deductibles. This will allow for wider and better coverage.
An applicant can now deduct the following when calculating his disposable income: (i) $6,000 for his own expenses. This is an increase, up from the current $4,500; (ii) he can also deduct up to $6,000 for his spouse's expenses. This is up from the current $3,500. But this would not apply when the Director has already excluded the income of a separated spouse; (iii) the applicant can also deduct up to $6,000 for the maintenance of each dependant. This is up from the current $3,500; (iv) he can also deduct up to $20,000 for rent. This is up from the current $1,000, and is based on the lower end of the prevailing open-market rental rates for 3-room flats in suburban areas; and (v) he can also deduct his spouse's CPF contributions though, again, this will not apply when the Director has already excluded the income of a separated spouse.
That is for income.
As for the disposable capital, an applicant can now disregard the following. First, his CPF investments. These are to be disregarded because he cannot withdraw these to pay for legal services. Second, the life insurance policies held by him, of up to $46,000 in surrender value. Third, the annual value of his home, provided that it is $13,000 or less. This is up from the current annual value of $7,800, and it is equal to the revised maximum annual value of HDB flats. HDB flats which are used as dwelling homes will remain entirely deductible.
These amendments to the general means test will ensure expanded coverage. The current coverage of legal aid is about 17% of Singaporeans and PRs. With these amendments, we estimate that the Act will cover about 25% of Singaporeans and PRs. This would translate to about 300,000 additional persons who can potentially be covered under the Act. And this expanded coverage does not take into account the Director's discretion to depart from the general means test in exceptional circumstances, which I shall address later.
So what does this mean in practical terms? Perhaps, I can illustrate by this example. Let us take a family of four, living in a HDB flat. You have one working parent, one homemaker, two children. Let us say the gross household income is $3,500 a month, or $42,000 a year. After deduction of CPF, the gross
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household income is $2,800 a month, or $33,600 a year.
Applying the current test before the amendments, the deduction for each member of the household would add up to $15,000, that is, $4,500 for the applicant, $3,500 multiplied by three for the spouse and children. The annual disposable household income would, therefore, be $18,600 – and this would be above the $10,000 disposal income limit. So, in that example, if you have applied the current test, they would not qualify. But if you apply the revised test under the proposed amendments, then the deductions can add up to $24,000, that is $6,000, for the applicant and up to $6,000 times three for his spouse and two children. So, applying the revised test, the annual disposable household income would be $9,600, which would bring that family within the $10,000 limit. If the same family pays rent, the rent would be an additional deductible and, as such, the gross household income could potentially go up to $5,625 and the family would still meet the income limit of the means test.
That is for the general means test. There is also a new discretion that we are introducing for family proceedings. Clause 21 introduces a special discretion in applying the means test for family proceedings which involve a child of protection orders. The practical effect of this amendment is that it will extend the coverage of legal aid to persons who are the most vulnerable in family disputes. The Bill introduces a rule-based discretion for the following proceedings: (a) divorces, where a child of age below 21, a minor, is involved; (b) custody care, control and access of children, child maintenance and all cases under the Guardianship of Infants Act where children below age 21 are involved, as well as (c) cases involving personal protection of a child and/or spouse.
In these types of cases, the Director of Legal Aid has the discretion to relax the deductibles in calculating the applicant's disposable capital. Under the Bill, in addition to the standard deductibles, he has the discretion to exclude the following from the calculation of disposable capital – the applicant's home, provided that its assessed annual value is not more than $20,000. This is $7,000 more than the ordinary cap of $13,000. The effect of this amendment is that it will extend coverage to residents living in lower end private property. There will also be a new deductible in the form of $5,000 worth of capital. This, in effect, raises the disposable capital cap to $15,000.
The proposed amendments also expand the discretion for loss of income cases where the applicant has suffered a sudden loss in income and requires legal aid urgently. Under the current Act, when an applicant has suffered a sudden loss in income, the Director already has the discretion to assess the applicant's means by looking at his disposable income for six months instead
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of the usual 12 months. Under the proposed amendment, the quantum of the deductibles applicable in such situations will be increased, in line with the changes to the general means test for disposable income. So, for example, the deductible for dependants in this situation will be increased to $3,000, from $1,750, which is half of the new deductible for dependants under the general means test.
The remainder of the Bill makes general improvements to the administration of legal aid. The salient clauses are as follows:
Clause 3 amends section 4 to empower the Director of Legal Aid to remove a solicitor from the panel of assigned solicitors. The Director can exercise this power when, for example, a solicitor has ceased practice or it is shown from his professional conduct that he is not a suitable person to remain on the panel. However, a solicitor aggrieved by his removal can appeal to the High Court.
Clause 7 amends section 9 to empower the Director of Legal Aid to require all applicants for legal aid to make contributions towards the costs incurred for their case. The approach here is ultimately founded on the principle that the applicant must also exercise responsibility. An applicant who has a stake in his case has more incentive to be prudent and responsible than one who does not. The contribution required will depend on the means of the applicant. There will always be cases where the applicant faces great financial hardship. No contribution will be required from those who truly cannot afford to pay any.
Clause 10(d) amends section 12(4)(a) to make clear that the legally aided person is not liable to pay the fees of the Bailiff of the Subordinate Courts in the execution process, and clause 10(f) inserts a new paragraph (d) in section 12 to exempt an aided person from having to pay the requisite deposit to the Official Assignee where aid has been granted to commence bankruptcy proceedings against the debtor. This will make it easier for aided persons to recover debts due to them.
Clause 11 amends section 13 to empower the Director of Legal Aid to require an applicant for legal aid or a legally aided person to deposit a sum of money to meet out-of-pocket expenses incurred on his behalf.
And clause 20 amends the First Schedule to add proceedings before the Shariah Court Appeal Board under the Administration of Muslim Law Act and proceedings before the Commissioner of Labour under the Work Injury Compensation Act and to the list of proceedings for which legal aid may be
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granted.
Mdm Speaker, in conclusion, I would say the Bill recognises that access to justice is important and that not all individuals have the ability to get such access without assistance. The Bill reaffirms the Government's commitment to providing access to justice for the most needy among us.
I would also like to acknowledge the officers of the Legal Aid Bureau, as well as the important role played by private lawyers who, quietly and without expectation of thanks, give their time and energy to pro bono work, whether as assigned solicitors with the Bureau or under other pro bono initiatives. A debt of gratitude is also owed to the social workers who work alongside the lawyers dealing with the problems that the law cannot solve.
I would conclude by saying that State legal aid is part of a range of measures to help the needy. It is supplemented by LASCO for capital cases, as well as CLAS and other pro bono work administered by the Law Society. All of these have a part to play in facilitating access to justice. Mdm Speaker, I beg to move.
Question proposed.
Mdm Speaker, first, let me congratulate the Senior Minister of State on her maiden Second reading Bill. I promise to be nice and polite. I support any measure which promotes access to justice. The Court's role is to resolve disputes, protect rights, interpret and clarify the laws we live our lives by. Ultimately, it is there to do justice. But it cannot achieve that role if people are unable to put their grievances before it.
I, and I am sure many in this House, have come across cases where Singaporeans have been reluctant to pursue good cases, because of costs. Often, it presents a chicken-and-egg problem – a wife who needs a lawyer to recover maintenance but is unable to pay for a lawyer because she does not receive maintenance. Individuals are entitled to represent themselves, but many shy away from doing so because the process appears too intimidating and they believe they cannot cope.
Legal Aid will not solve all these problems and not all problems can be solved, but it is an important tool to help those in need. I am, therefore, glad
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that the Government is changing the criteria for a person to qualify for Legal Aid, so that more Singaporeans can benefit from it.
There are, however, four points I would like to raise about the Bill.
The first concerns the amended means test. In order to qualify for legal aid, the applicant's disposable income must not exceed $10,000. To calculate disposable income, clause 21 stipulates that a maximum amount of $6,000 can be deducted from the applicant's income in respect of maintenance of each dependant.
I accept that $6,000 is a significant increase from the original deductible of $3,500. However, it does not distinguish those families who may have higher expenses because the child or the dependant is handicapped or chronically ill. So, the Act is not flexible enough to embrace different circumstances.
I accept that it would be impossible to legislate for different situations. That is why the Director should be given wider discretion to allow or disallow applications, and to ask for information which will enable him to exercise that discretion. This would allow the means test to be applied in a more effective and accurate way.
The means test could also be made more flexible. A good example of its rigidity is the deduction for rent in calculating disposable income. In this Bill, the amount of deductible for yearly rent has been revised upwards from $1,000 to $20,000. Would that figure still be relevant next year or the year after that? It could, depending on the economic situation, be either insufficient or too generous. Rather than having to wait for Parliament to legislate changes which takes time, we should use a more flexible formula which takes into account fluctuations in inflation or cost of living. This would allow the means test to remain relevant as time and the economy changes.
The second is a point for clarification on the issue of contribution. Section 16(4) applies to a person who is not initially liable to make a contribution, and who subsequently recovers money in legal proceedings or by virtue of a settlement. This section operates to make such a person liable to pay the Director for sums payable on his account out of the monies he recovered, and that is a good thing.
Under section 9 of the Act, persons whose disposable capital and annual disposable income fall below $2,000 need not make such contributions. Under
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the proposed amended section 9, however, this $2,000 lower limit is abolished. Instead, all persons are liable to make contributions, except where the Director exercises his discretion to reduce, waive or refund any contribution.
My question concerns how section 16(4) operates in situations where the Director has exercised his discretion to waive the contribution. Section 16(4) states that only persons who are "not liable to make a contribution" are required to pay the Director out of the monies recovered. A literal reading of the section suggests that only persons who had their contribution entirely, and not partially, waived would be liable to the Director for sums payable in the event that he recovers money. Could the Minister clarify if those who had their contributions partially waived are still liable to make contribution in the event that they recover money?
Third, clause 20 of the Bill expands the scope of the Act to allow aid to be granted for proceedings before the Commissioner for Labour under the Work Injury Compensation Act. Such workers are a vulnerable class of people, and legal processes are often alien to them. It is important they are able to enjoy the full benefit of the statutory protection accorded to them. They will need legal assistance to navigate such proceedings in order to do so. Unfortunately, this is often too expensive and, again, intimidating. The Bill deals with this problem by extending the scope of legal aid. And, again, this is a good change.
This topic brings up the plight of foreign workers. As we have seen in recent months, unscrupulous employers can and do take advantage of their foreign employees. Recently, it was reported that a foreign worker who had been injured in an industrial accident had difficulty obtaining his compensation award because his employer had failed to purchase insurance for him. There have also been reports of employers withholding salaries to their employees for months on end, or who do not provide sufficiently for their welfare. They are exploited simply because they are vulnerable. If left unchecked, workplace abuse can have negative repercussions on Singapore's reputation, industrial relations, and public order.
Under the Act, only citizens and permanent residents can avail themselves to legal aid. I am not advocating legal aid for foreigners. However, there is no reason why employers should not bear the costs of their employees receiving proper representation in relation to work disputes. And this should be made part of the true cost of hiring foreign workers.
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My last point concerns legal aid for criminal proceedings. We do not have a criminal legal aid scheme administered by the State. The only form of criminal aid provided by the State is for capital crimes under the LASCO scheme. Those who are unable to afford a lawyer in non-capital criminal proceedings are faced with defending themselves, unless they qualify for aid provided by volunteer lawyers from the Law Society. Based on figures provided by the Subordinate Courts, up to 41% of accused persons are without counsel at the pre-trial stage.
More should be done to help those who need counsel for criminal matters. Laypersons find it extremely challenging to navigate the legal process. Whenever an accused person is unrepresented, the risks of an unsatisfactory outcome are higher.
At first blush, there may be some conflict in the Government expending resources to investigate and prosecute crimes, and then giving legal aid to the accused. But it is not the Government's role simply to arrest, try and jail. Government's role is to ensure the rights of all citizens are protected, and that includes making sure that those who are accused have a fair hearing. Its KPI should not be the number of successful prosecutions, but rather that, in every case, a fair and just result was achieved.
There have been cases of accused persons taking what they consider to be the easier path – pleading guilty to an offence they did not commit simply because they cannot afford the cost of a trial. Whenever we have cases of wrong convictions, it is a blight on our legal process and the administration of justice. And there is no higher cost than the indelible stain of a wrong conviction, particularly where the cause is one of lack of resources. As a society, we have a shared interest in ensuring that the rights of all are protected. In that respect, there is no conflict in administering criminal legal aid.
Thus, I would like to urge the Minister to extend legal aid to criminal cases or even consider a public defender scheme to provide legal assistance and representation for those who cannot afford legal counsel in criminal proceedings. We may not need to expand the legal service to achieve this. The solution could lie in assigning lawyers criminal legal aid cases with a modest fee rate set by the Director of Legal Aid. This is not unlike the situation where applicants for legal aid may be assigned an external solicitor. Such a scheme would also have the advantage of building up and improving the quality of the criminal bar, as well as exposing our younger lawyers to such work.
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I started by saying that Legal Aid is just one tool, albeit an important one. But the duty to providing good counsel to those in need should not fall entirely on the Government. The principle of "many helping hands" should apply here as well. Private practitioners, retired lawyers, academics, corporate counsel and even lawyers in foreign law practices in Singapore should get involved. There is enough legal talent in this country to do this. Despite the long hours and the stress, we should acknowledge that we – lawyers, that is – belong to a privileged group. We should offer our time and expertise to help those who are not so fortunate. There is now a strong drive, led by the Law Society, to have lawyers in private practice do more pro bono work. We should support it as best we can. There is still much to do, but if everyone does his bit, we can significantly reduce the risk of an unjust result and have a legal system we are all proud of.
Thank you, Mdm Speaker. Before I begin, I should state that I am a member of the Legal Aid Bureau's panel of solicitors.
Mdm Speaker, a few weeks ago, I made an appeal on behalf of a resident who came to see me. He is 51 years old, married with two children of school-going age. He ran a small business which did not succeed. Over the years, he had stopped work to look after his two children. His wife was the sole breadwinner of the family.
Last year, after 16 years of marriage, his wife filed papers in Court to get a divorce. She also asked to be given sole care and control of the children. He was served with court papers by his wife through her lawyers. He came to see me because he needed assistance and also legal representation in court.
He was, however, denied assistance by the Legal Aid Bureau. He held a life insurance policy where the surrender value exceeded $10,000. Hence, he failed to qualify under one of the double-barrelled means criteria. He went on to get some other pro bono assistance from legal clinics and other sources, but, today, he remains unrepresented in court.
Mdm Speaker, this is not too infrequent an occurrence. Access to justice, as the Senior Minister of State pointed out, is a cornerstone-principle of our legal system. It is important for us to ensure that legal costs should never be prohibitive, and should never be a reason for a person to be denied justice.
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Chief Justice Menon made this point just a few days ago when he spoke at the opening of the 2013 inaugural Litigation Conference. He said, and I quote: "It is cold comfort to those who seek justice to say that we have a great legal system, if it is priced out of their reach." It is with this as its driving purpose that the Legal Aid Bureau was set up in 1956. The objective was to make legal aid and advice more readily available to persons of limited means.
Under the present means criteria, the entire amount of an applicant's surrender value on any life insurance policy would be taken into account. In other words, a surrender value of $10,000 or more, even on a life policy, would automatically disqualify an applicant, even if that applicant has got no other assets or is unemployed and has no income. A surrender value of $10,000 on a policy is not very high and, more often than not, taken out at an earlier stage of their lives in order to mitigate against the occurrence of accidents or other unfortunate rainy day incidents. This really ought not count against an applicant when he or she applies for legal aid. More importantly, unlike other forms of disposable capital, such as a motor car or property or shares, an applicant should really not be expected to dispose of his life insurance policy just to fund his legal expenditure.
During the debate on last year's Budget, I had inquired if the Minister could consider reviewing the qualifying criteria used for means testing. These criteria have now, through these amendments, been refined and include revising the deductions in income levels to account for the increase in basic living expenditure, and also deductions in rental relief and life insurance policies. These changes would allow the Director, Legal Aid, to better assess the true financial ability of an applicant to have access to legal aid. I, therefore, support these amendments.
Whilst these revisions go a long way towards ensuring that a broader spectrum of society would not be disqualified on the means test alone – there is also the merits test – I wonder if the Minister would be prepared to consider giving additional discretion to the Director to grant legal aid in circumstances where the applicant otherwise fails to meet the criteria.
Mdm Speaker, I raise this because, even after these amendments today, the qualifying criteria remain an absolute one, apart from some additional considerations which the Director already has by virtue of paragraph 6 of the Second Schedule and through the additional amendments that are being introduced today. Paragraph 6, in particular, is limited in application to only certain specific category of persons, and even then, there is a cap on the additional deduction which can be given. The Act otherwise provides no latitude
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for re-consideration once the criterion is exceeded, however minimally. In the case of my resident, the letter he received from the Legal Aid Bureau stated specifically that the criterion was a statutory requirement and they were unable to waive it.
The only other recourse in such a situation is for the applicant to appeal to the Minister. Under section 8(4) of the Act, which was introduced in 1995, the Minister may authorise the Director of Legal Aid to grant aid to any applicant who does not qualify if it is in the public interest to do so. However, it is difficult to imagine a situation where an individual or an applicant would be able to satisfy the public interest element to persuade the Minister to exercise his discretion to grant him legal aid. In fact, in 1995, when the then Minister for Law introduced this provision into the Act, he cited as an example of a public interest exception, the victims of the Spyros incident which took place in 1978 in Singapore. And that, we know, was one of the largest industrial accidents in Singapore.
Hence, I would echo the earlier Member, Mr Hri Kumar, in suggesting that the Legal Aid Director be given a broader discretion to consider all relevant circumstances in a situation where the applicant has not passed the means test. This would not be an altogether new proposition as the comparable legislation in Australia and the UK already provide for the relevant authority there to have discretion to decide, based on a range of relevant circumstances and criteria which evaluates not only the financial means for that particular applicant but also the complexity of the legal case in question and what other serious alternatives to litigation that the applicant might have.
Under section 8(3) of the Act, the Director is already conferred a discretion to deny the grant of legal aid even if the means criteria have been satisfied. What I am seeking is to ask: why not give him a similar discretion the other way round – to consider the grant of legal aid, notwithstanding that the means test has not been satisfied. In such a situation, the grant could be on a limited basis, or possibly on an enhanced co-payment basis so that only genuinely needy cases would be assisted. Having an unbending financial means criterion which just looks at numbers alone does not always meet the ends of justice.
The last amendment to the Act, as the Minister pointed out, was done in 2007. Income levels, inflation rates move. In fact, today's amendments recognise specifically that, to take the example that the earlier Member cited, for the deduction of rental relief that has gone up from $1,000 to $20,000, taking into account today's prevailing open market rates for HDB housing. This shows that there could be really large swings in the threshold levels between the time
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that the Act is amended to update these threshold levels. Giving the Director a broader discretion would mean that the Act does not have to be amended each time the qualifying criteria become outdated or need to be amended. And it would certainly also reduce the risk of an applicant falling foul of the means test for no other reason than because market rates have moved on. Madam, with that, I support this Bill.
Mdm Speaker, the proposed amendments before us today will help improve access to justice, and reinforce the principle that every Singapore Citizen must be afforded justice, in both substance and availability, regardless of one's financial status. We cannot have a legal system in which access to justice is divided between the "haves" and the "have-nots".
The means test was last revised in 2007. This review and revision is needed so that the means test is kept sufficiently robust to ensure that the rise in income levels and costs of living do not result in fewer deserving people qualifying for legal aid.
Madam, I welcome the proposal to expand the coverage of legal aid for persons of limited means. The deductions applicable when calculating disposable income would increase to $6,000, from $4,500, for the legal aid applicant; and $6,000, from $3,500, for each dependant. These are significant increases and I welcome them.
Madam, I have three questions at this juncture for the Minister.
First, could the Minister enlighten the House on the considerations that drove the review of the Act and the means test, as well as how the quantum of increase in disposable income before a person would qualify for legal aid was arrived at?
Second, could the disposal income level be increased before a person is eligible for legal aid? For example, to qualify for legal aid after the proposed amendments, the indicative income level for a person with no dependant is a gross monthly income of $1,666.67, or about $20,000 per annum, after taking into account the permitted deductibles. This is an increase from the current existing rates. Would the Minister elaborate how this minimum threshold
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income is determined? Why $10,000? Why not a figure which is higher?
A third question is: why are Singapore Citizens and permanent residents treated equally when it comes to the provision of the grant of legal aid and advice? Should permanent residents not be required to satisfy a higher threshold when it comes to means testing?
I welcome clause 21 of the Bill which refines the means test for matrimonial cases in which minors are involved. Minors should be adequately protected and the limited means of their parents should not compromise their rights and interests.
This Bill also seeks to provide for the Director of Legal Aid to have greater discretion and flexibility in the administration of the legal aid scheme. I support this provision to give the Director of Legal Aid greater discretion. Our legal aid scheme cannot be so overly rigid if the Legal Aid Bureau is to meaningfully fulfil its mission of "blazing trails in the compassionate practice of the law".
Mdm Speaker, the responsibility for the legal aid scheme cannot just rest with the Government. To be sure, the State's provision of a well-funded legal aid scheme is necessary. But that is insufficient to develop and sustain a compassionate legal aid scheme. For the legal aid scheme to function purposively and with compassion, the role of assigned solicitors is extremely important. And I say this while also recognising the important role that the legal officers in the Legal Aid Bureau play. Not many legal officers would choose a posting to the Legal Aid Bureau, which is typically not regarded as glamorous. So, in this regard, legal aid must epitomise the best of the legal profession and what the law and the legal system can do to ensure that fairness and justice are not just motherhood statements but are lived realities in our society.
Money alone is grossly inadequate in delivering the quality of legal aid and advice to those who need such help most and, in the most serious cases, protecting a person's fundamental right of access to justice, be it in the civil or criminal arenas. In this regard, I welcome the formation of the Pro Bono Development Unit within the Legal Aid Bureau in 2011 and I hope that more efforts will be made to encourage pro bono work.
Mdm Speaker, I hope that the legal fraternity would fully embrace pro bono work, looking at it not so much as a form of social responsibility but – more importantly – to regard it as a noble privilege and a tangible commitment to the sustenance of a legal system that is accessible to all and to ensure that one's
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rights are sufficiently protected.
Would the Minister consider requiring our law students in our two law schools to undergo a mandatory programme on pro bono activities in order to sensitise them to the value of this unique service to society? Such a public interest lawyering programme need not necessarily be about clocking hours performing service, given the safeguards on the rendering of legal advice under the Legal Profession Act.
Rather, such a programme should nudge our aspiring lawyers to appreciate the centrality of legal aid and pro bono work in the well-being of our society's administration of justice, and how that helps to keep the various legal actors accountable in a system of justice that strives to be built on the rule of law.
Mdm Speaker, it is my hope that our framework and process of legal aid would more extensively involve non-lawyers as well, such as mediators and social workers. Access to justice need not necessarily be confined to access to a lawyer. While the Ministry of Law has actively promoted alternative dispute resolution (ADR), there is also the perception that ADR is all about compromise, or even the displacement of rights, even in relational disputes. This perception must be arrested to ensure greater confidence in ADR.
Finally, I would urge the Government to review the means test more regularly, perhaps every two to three years. The means test must keep pace, not lag behind, the change in the cost of living, as well as any other factors that may contribute to more persons of limited means requiring legal aid. Madam, I support this Bill.
Assoc Prof Fatimah Lateef (Marine Parade): Madam, I support the Bill and the expansion in the criteria for eligibility and coverage. This is in line with the vision of Legal Aid Bureau, which is blazing trails in the compassionate practice of law.
It is also welcomed by many of my residents who have had their cases rejected due to not meeting the previous criteria. With this amendment Bill, more people will qualify for legal aid assistance. It is thus anticipated that Legal Aid Bureau (LAB) will be seeing an increase in the number of applications. What will be its strategy to manage this increase? Will it be possible to get more qualified volunteers or will LAB likely have to work with private companies and
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volunteers and also the Law Society through its pro bono services?
Along the same lines, can I enquire on the average number of referrals annually to LAB for the last three years? How many were approved? And of the rejected cases, what were the circumstances? Are these due to not meeting eligibility criteria or other reasons? Also, what proportion of the referred cases were matrimonial-related or divorce-related cases?
For cases involving minors, Madam, the Bill states that the Director will have the discretion in decision making. I would like to ask, should we not at least set some minimum, flexible guidelines or criteria, as a reference?
Now, let me share an anecdote based on a real case in my constituency. A single parent who lived in my ward passed on, leaving behind two children who were in Primary school. Her sister, who was going to take charge of the children, came to see me to seek advice on legal procedures for formal guardianship. This happened in February 2012. One year ago. She had already taken the children in and was taking care of them and looking after them. She herself has got aged parents to look after and she works in the clerical line. I referred her to LAB for assistance, only to be given a rejection after several weeks. I re-appealed, of course. Somehow, the reply came with the same fate. Thus, I made a referral to the then MCYS, only to be told she needed the services of a pro bono legal representative from The Law Society, understandably. She, then, saw the legal representative from the Law Society, who then told her she should go back to LAB, as her case should be handled there! And, of course, she came back to me. It has been some four times since she has come to see me and the case continues, now into its twelfth month, going back and forth.
The reason for rejection given by LAB was due to the fact that she herself has a life insurance policy whose surrender value is $40,000. She had purchased this a long time ago when she started working. The surrender value of the policy has to be taken into consideration when assessing her assets. However, you and I know that this is not fluid cash for her and her family at this point in time.
I certainly hope something positive can come out of this amendment Bill to assist people like her, instead of having them go round and round like this. Now, with the "disregard of up to $46,000 of the surrender value of life insurance policies", under disposable income, it will benefit others in a similar predicament.
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Now, Madam, the new Bill will also cover proceedings, previously heard before the Commissioner of Labour, cases for workman injury compensation and also Syariah court appeals. However, what is still lacking is coverage for criminal legal assistance.
Sir David Marshall, then Chief Minister of Singapore, said that a service like that provided by the LAB is "essential in every democratic society to help the poor". A form of legal aid existed since 1956, even before the Legal Aid and Advice Bill came forth. There were, of course, criteria set, suitable for that period of time and the development of Singapore then. Free legal representation was provided then when necessary to even persons charged with murder. Then Minister for Social Welfare, Lee Yew Hock, stated that the principle on which the case for legal aid legislation might be based on is in the magna carta which states, "To no man will we deny, to no man will we sell or delay justice or right". There is, after all, a need to provide legal aid and ensure success of the judicial system and its equal opportunity to all; rich or poor.
I would like to ask the Minister of State: can we consider perhaps in selective cases, some sort of criminal legal aid assistance. After all, in cases of criminal prosecution, too, the poor and the low income will not be able to afford a lawyer and, indeed, a heavy stake is involved as he could end up in prison, affecting his life, his family and his children's future. Currently, these people can only get assistance under the Criminal Legal Aid Scheme from the Law Society, if they are lucky and, of course, there are no guarantees. Thus, in the name of supporting liberty and livelihood, I would like to propose if we can indeed consider assistance of some sort to these low income, needy and poor cases, maybe even in a more selective manner to start off. With that, Madam, I support the Bill.
Order. I propose to take the break now. I suspend the Sitting and will take the Chair at 4.10 pm.
Sitting accordingly suspended
at 3.51 pm until 4.10 pm.
Sitting resumed at 4.10 pm
[Mdm Speaker in the Chair]
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Debate resumed.
Mdm Speaker, I rise in support of this Amendment Bill which will help to enhance the framework for legal aid for those who are unable to afford legal representation and access to justice.
I would like to applaud and appreciate the steps taken by the Ministry of Law to review, expand and enhance the coverage of legal aid and introduce measures to avail access to legal aid and advice in Singapore.
I am heartened that there will be increases in the deductibles for applicants, their spouses and dependants to account for inflation and the higher cost of living. In addition, rental relief has also been raised correspondingly, in alignment with the market increases. Then, there is the up to $46,000 of the surrender value of life insurance policies which will be disregarded for means testing. By the same token, Central Provident Fund (CPF) Investments will not be included in the calculation, and the annual value of applicants' property to be excluded from the means testing will be increased to $13,000 from the current $7,800. All these reflect current realities on the ground and will allow those in the lower segment of the populace continued access to legal aid and justice.
However, I would like to question whether there is a better way to capture the current cost realities than merely fine-tuning the deductibles and relief. The last review of the means test was in 2007 where the disposable income was raised to the current $10,000. With a current inflation rate of over 3%, it would be far more effective to consider raising the disposable income rather than to deploy the current method of increasing personal and dependants' deductibles and relief.
For example, in personal relief, we have seen an increase of $1,500. If we take reference to an applicant with no dependants, the increase after five years is a mere 7.5%, based on a monthly pay of $1,667. This works out to be only a 1.5% increase per year since 2007, calculated against the gross monthly income. In the same vein, even as we consider the increase in the dependants' relief from $3,500 to $6,000, this works out to be an increase of only 2.5% per year since 2007. All these are still below the 3% average inflation rate.
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With reference to the $10,000 limit, we should try to work out a simple average analysis of monthly income. Disposable income, after the revised terms, is defined as the total income, together with the spouse's income for the past 12 months, after deducting $6,000 per dependant, $6,500 for oneself; rent not exceeding $20,000 per year and CPF contributions. Taking into account current cost of living, a disposable annual income of $10,000 would be at sustenance levels.
Instead of $10,000 as the disposable income limit, I would propose to increase the amount correspondingly with the rise in household incomes and factoring in accelerating inflation to $14,000. According to the "Household income Trends 2011" issued by the Department of Statistics, the average monthly income of our resident employed household, excluding employer CPF contribution, was $6,280 in 2006. In 2011, the same figure has grown sharply by 41% to $8,864. As we seek to push up the wages for Singaporeans in all industries and sectors to provide for a better life, I submit that there should be a proportional increase in this disposable income limit to be entitled to legal aid.
Moving ahead, I recommend that it is imperative to regularly and continually review the current limit, possibly every two years, to factor in rising inflation and rising incomes of our populace.
In addition to the means test, there is also in place a merits test that the applicant will have to go through before the Legal Aid Bureau will grant support. If we know that each applicant is already caught up in domestic or personal issues to seek legal resolution, do we need to subject the applicants to the merits test? It would be useful for the Legal Aid Bureau to share with or educate the public openly on what are the objective criteria in the merits test and how approval will be decided. The Government should also delve into further study as to how legal aid can be administered through the whole system rather than Legal Aid Bureau per se.
If a society is judged by how the strong and those in governance help the weak, I am confident that a better support system for legal assistance can be developed comprising well-established community legal clinics, easier access to Government legal aid and a certain number of pro bono hours to be determined between the Government and legal fraternity. Of pro bono hours, we have heard commonly of the two schools of thought – one, that it should come from the heart and, the other, a mandatory system. These two points of view are often intensely argued by both sides. I believe a balance can be created between the two. The Law Society, Ministry of Law and our Law Schools are already doing great work in this area. The Chief Justice has also urged and
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supported the move to encourage the legal profession to serve the community. In fact, just two weeks ago, NTUC and the Law Society entered into a long-term partnership to provide legal clinics, resources and employments to our more than 700,000 union members. Moving ahead, it distils down to how the Government and the legal fraternity can work together to work out a framework that will enhance this access and for the fraternity to endorse and embrace them.
Lastly, we must also not forget the Legal Aid Bureau and its staff and people there who make legal aid "happen" for us. Two decades ago as a young law undergraduate, I spent my first year university vacation on attachment with the Legal Aid Bureau. I saw for myself the plethora of cases and the piles of files which the Bureau had to handle. I am sure and hope much has improved since those days. With this expansion of the scope of Legal Aid pursuant to these amendments, I hope more resources be dedicated to enhance and develop the capabilities of the Legal Aid Bureau to handle in this new operating environment. I envisage that more manpower will be needed in view of higher workloads.
In addition, well-manned counters and hotline services to take queries and, at the same time, provide timely updates to those on-going cases, are needed. Likewise, there should even be a specialised department in the Bureau to have the ability and astuteness to investigate when doing the "means test" and detect and differentiate genuine cases deserving aid from those out to abuse the system.
In conclusion, it is important to ensure that legal aid will remain available to all, especially those who are unable to afford it. A systemic development, capability enhancement and dedication of resources by the Government for legal aid, such as community legal clinics, pro bono legal services and the Legal Aid Bureau, would have greater effectiveness in reaching out to those who need the legal services the most and yet unable to afford them. With that, I support the Bill.
Ms Ellen Lee (Sembawang) (In Mandarin): [Please refer to Vernacular Speech.] Mdm Speaker, I rise in support of the Amendment Bill. The amended means-testing system would be more beneficial for Singaporeans and PRs who apply for legal aid. For example, the cap of disposable capital is now raised from the current $7,800 to $13,000. We all know that housing prices have been rising rapidly in recent years. For an ordinary
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home owner, his disposable capital, that is, the house he owns, has increased in value. The increase in housing prices is the equivalent of the rise of disposable capital. The amendments demonstrate the efficiency, flexibility and sensitivity of our legal system. The purpose of legal aid is to help those who need legal support yet lack the financial resources to receive fair and just treatment. The amendments have served this purpose by not depriving those who cannot apply for legal aid due to market reasons from getting the help they deserve, thus protecting their interests.
The amendments are good, but I have three points to raise: first, not long ago, the Government announced a slew of generous grants for buying a flat, childcare and education. People now ask: is too much welfare conducive to encouraging people to continue working hard? Some might question the benefits of giving legal aid applicants more financial help. To address these concerns, should the Government not respond by informing the public the scope of legal aid through the media, community and grassroots organisations? Not all legal issues can be solved by free services provided by the Legal Aid Bureau staff.
Second, there were 9,775 legal aid cases in 2011, among which over 50% were divorce cases; others were adoption, traffic and industrial accident compensation cases. It is worth noting that one third of the cases were handled by over 100 pro bono private lawyers, not by staff from the Legal Aid Bureau. These are onerous pro bono duties; and the pro bono spirit of these lawyers is commendable. It should be emulated by younger and new lawyers. Some Singaporeans do not understand that the Bureau must take a calibrated approach in handling these cases, and consider each single detail; and they complain that the Bureau has a bad attitude and do things inefficiently. We can then better look after the vulnerable who need legal aid, creating a more inclusive society.
Third, I understand that there were more females seeking legal aid in 2011. Among them, those aged between 40 and 50 years old made up 28%, and those 50 years old and above made up 36%. In terms of education, those with Secondary school education but did not attain "O" level qualifications formed 26%; those with only Primary school education formed 28%. Generally speaking, people with low education tend to be ignorant of their legal rights, therefore, are helpless in handling marital or family disputes. I suggest that, subject to available manpower, we should conduct free legal courses for the low-income
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earners in languages they are familiar with, so that they know how to safeguard their own rights and seek fair treatment when they encounter difficult legal problems.
Mdm Speaker, I thank the Members who have spoken and would like to address some of the issues and queries that they have raised. First, I think that Mr Hri Kumar and Mr Edwin Tong had both made speeches calling for greater discretion. In a sense, what they raised was highlighted and responded to by Assoc Prof Fatimah Lateef who, on the other hand, questioned the issue of discretion and asked whether or not we should have some minimum flexible guidelines or criteria. And there you have the tension. Discretion allows you to do a certain amount of things but, at the same time, that discretion cannot be unfettered because, if so, it would not be transparent and then there would be challenges to whether the discretion was exercised properly.
There has to be some reference to a framework, and that is what we have at the moment. We have tried to balance it by having a transparent means test but, at the same time, we have tried to blunt the sharp edges of the means test by having a discretionary element exercisable by the Director of Legal Aid. I notice, though, that the two cases mentioned by Mr Edwin Tong and Assoc Prof Fatimah Lateef were ineligible for legal aid because of the surrender value of the applicants' insurance policies. In these cases − for Mr Edwin Tong's resident, the surrender value was $10,000 and, for Assoc Prof Fatimah Lateef, it was $40,000 − under the revised limits, they would both qualify. I would urge Mr Tong and Assoc Prof Fatimah Lateef to ask their residents to re-apply. If there is further difficulty, please refer the matter to me, and we will see what can be done.
Assoc Prof Fatimah Lateef also asked about the average number of referrals annually for the last three years and how many were approved. On average, there are about 10,000 applicants to the Legal Aid Bureau per year, out of which, approximately 90% are approved. She had asked what were the reasons for the rejected cases and, in general, it is because they have not met the eligibility criterion. Finally, she had also asked what proportion are matrimonial cases. The answer is 52%.
There were comments made on the means test in general and, on this, let me just make a few comments – which are that the touchstone is really
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disposable income and disposable capital, not gross income or gross capital. What we do is we look at the resources reasonably available to the applicant in order to finance his or her legal expenses. The test allows the applicant to deduct the resources which he uses for his day-to-day expenses and his spouses' expenses and his dependants' expenses; so, you do not take that into account. It also disregards the assets which you cannot expect the applicant to sell, for example, his life policy up to certain amount and his dwelling home. So, you look at the end of the day at what he has left that he can actually use to pay for legal services.
Mr Patrick Tay said that taking into account current cost of living, annual disposable income of $10,000 is at the sustenance level. I was not quite sure why that would be the case because the means test envisages that $10,000 is what you have left after you have deducted your own expenses, your spouse's expenses and your dependants' expenses. So, $10,000 disposable income for legal services is not luxurious by any measure but it is, I think, accurate to say that it is above sustenance level. There are also different ways to structure the means test, but our assessment is that adjusting the deductibles is probably a more targeted approach than simply increasing the disposable income limit. That is because the deductibles, which we are increasing, are what represent the average cost of living for the average family. The annual disposable income represents our estimate of the reasonable cost of basic legal services. So, the $10,000 figure was arrived at, being an estimate of what would be a reasonable amount you would have to spend in order to obtain basic legal services.
If you take a test where you raise the annual disposable income into a one-size-fits-all test, then it could result in inequitable outcomes. For example, all things being equal, a bigger household with more dependants will have more expenses. Having a flat disposable income test could operate unfairly against them. Pegging the living expenses deductibles to a number of dependants will give you a fairer outcome.
So, the better approach is this: we look at the disposable income and capital limit and ask ourselves whether those amounts are sufficient to finance the cost of basic legal services. Our assessment is, yes. If you have more than $10,000 in disposable income or capital, you ought to be able to afford basic legal services. If it is less than that, then that is where the Legal Aid Bureau will step in to help you. The idea is that this is not intended for protracted trials but basic legal services, such as probate, adoption and straightforward family law cases.
I turn now to the comments made by Members on the specific elements of the means test. Asst Prof Eugene Tan asked about the considerations for the
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review of the Act and how the quantum was derived. The main consideration in reviewing the Act was to take into account the changes in cost of living and also to provide coverage to the more vulnerable groups in family cases. That was the thinking behind the current amendments.
Several Members had also expressed concern that the levels in the means test may become outdated and they had commented on the need for regular updating, and I note Asst Prof Eugene Tan's comment that review and revision are needed so that deserving persons are not shut out. Yes, we agree entirely. That is why the Government regularly reviews the Act and the Act has been reviewed at regular intervals – in 1995, 2001, 2007 and, now, in 2012. But we will continue to review and refine the means test regularly to ensure that it remains relevant.
Mr Hri Kumar suggested that the means test could be updated by using a flexible formula rather than having to wait for Parliament to legislate the changes to the means test. Actually, under section 24 of the Act, the Minister can amend the means test deductibles and discretions in the Second Schedule by way of Gazette notification. In this instance, it is being brought through Parliament because there are other amendments which are required.
I move now to the exceptions to the means test. All of what I said before notwithstanding, I also accept that rigid adherence to the means test can cause difficulties in very exceptional cases. The test is premised upon average income and expenditure patterns and, like all tests premised on a general set of parameters, it may operate harshly, or in an unintended fashion, in exceptional circumstances. It is for this reason that the Act has discretionary exceptions to the general means test which cover separated spouses, those who suffer a sudden disability leading to a loss of earning capacity, those who suffer a sudden loss of income and need urgent aid and, of course, the new exception that we added for family cases involving children or those requiring protection orders. The amendments have increased the quantum of the deductibles for the discretionary cases and built in some extra flexibility.
To recap, the Government's general approach is to make sure that those in need of legal aid but who are in difficult financial circumstances, especially the vulnerable groups, are not shut out by inflation and changes in the cost of living. We are also concerned to ensure that vulnerable individuals in family situations have the protection of the law and access to justice, and this can be seen from the thrust of the amendments.
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Asst Prof Eugene Tan asked why Singaporeans and PRs are treated equally when it comes to the provision of legal aid and advice, and suggested that PRs be required to satisfy a higher threshold. Actually, there is a differentiation in treatment between Singaporeans and PRs. Whilst we do not have a separate means test for Singapore Citizens and PRs for the qualifying level, PRs are generally charged a higher contribution when they are granted legal aid. So, in order to qualify, the test is the same. But at the end of the day, when we are asking back for some form of contribution, the PRs will have to pay more than the Singaporeans, and there is a differentiation between Singaporeans and PRs in favour of Singaporeans. We think that this is a fairer approach. This is the current position, but we will continue to study this.
Whilst I am on the subject of contributions, Mr Hri Kumar asked whether those who had their contributions partially waived are liable to make contribution in the event they recover money. The answer is, yes, they are.
On the merits test, Mr Patrick Tay asked whether it is necessary to impose a merits test. And the answer, again, is, yes, it is. The reason is this: you are spending taxpayers' money to provide legal aid; you want to make sure that the person has access to justice. On the other hand, if a claim is clearly frivolous, you do not want to be spending the taxpayers' money to pursue something which is clearly and obviously frivolous. Similarly, for untenable defences. On the other hand, I accept that there are also cases which fall in between where the possible outcome is not so clear. And that is where you have to make an assessment of the merits: you have to think about whether this is a case which should go to court. On balance, if there is a reasonable prospect of success, then the Legal Aid Bureau will render legal aid. So, the merits test is relevant and important.
Mr Tay had asked what about the criterion for the merits test. But you cannot apply a criterion as such. Each individual case depends on the facts of the case and the application of the law to that case. So, it is not a one-size-fits-all merits test for every case.
On the broader issues, I believe, Ms Ellen Lee mentioned about legal aid services in general and educating the public on the legal aid coverage. The means test and the scope of legal proceedings covered are actually available on the Legal Aid Bureau's website and brochures. But the Legal Aid Bureau is happy to provide copies of the brochures to organisations as and when required.
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Ms Ellen Lee also suggested educating the public of their rights. Certainly, more can be done in this area. It does not necessarily have to be the Legal Aid Bureau but we will look to see how persons in need can be made more aware of their legal rights.
Mr Hri Kumar raised some concerns about foreign workers who may be caught in legal difficulties. Whilst I appreciate the comments that he has made, they really are more a matter for the Ministry of Manpower. I will raise Mr Kumar's concerns and suggestions to the Minister for Manpower, but Mr Kumar should feel free to direct those comments to the Minister for Manpower himself as well.
For criminal legal aid, I would agree with Mr Hri Kumar and the others who have spoken on it about the importance of adequate representation in criminal proceedings. The Government already funds LASCO. But on the other types of criminal proceedings, I should say that the Government's KPI is not convictions. The Government's KPI must be and always has been justice. This is something that we will try to uphold. And it is because of this that the Government does also contribute indirectly. The Government makes a contribution to the Law Society's Pro Bono Services Office which runs the Criminal Legal Aid Scheme. We are in discussion with the Law Society to expand our funding to them, to enable the Society to take on more deserving cases. There is also a Government-community collaboration, the Community Justice Centre, which is in the midst of being implemented. This is a one-stop hub that will provide greater integration of legal aid and social assistance to litigants-in-person or defendants. Social services available at the Centre include legal clinics and practical support services to help the LIPs or the litigants-in-person prepare court documents and applications. That said, we are also open to other suggestions.
Mr Hri Kumar had suggested a possible public defender scheme using lawyers from private practice. This is actually among the various suggestions that we have received and which have been considered. We will review this and other suggestions and see if any refinements can be made.
I would like to conclude by commenting on what some Members have raised, which is support from the legal community and the need for pro bono. They have mentioned lawyers in private practice and other stakeholders who have come forward to give of themselves and their efforts in terms of pro bono legal aid. This is very much to be encouraged and it is heartening, in particular,
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to see the private lawyers coming forward to do this.
In reply to Assoc Prof Fatimah Lateef, the Legal Aid Bureau has been enjoying good support from the legal community in getting private lawyers to be their assigned solicitors. As mentioned by Asst Prof Eugene Tan, we set up the Pro Bono Development Unit in the Bureau to better reach out to the private lawyers. And Mr Hri Kumar's point about involving corporate counsel and foreign practices is also well taken, and this will be reviewed.
With respect to the Legal Aid Bureau's caseload, my Ministry will allocate resources to deal with the increased caseload for the Bureau as may be appropriate.
With respect to what is the best approach to promote more pro bono efforts, mandatory or otherwise, we have had a consultation, views have been heard and a committee led by Justice V K Rajah will make recommendations on the way forward. There is also a committee which I am chairing – the Pro Bono Promotion Committee – which will look into the overall pro bono system and review how best to encourage pro bono work by the legal profession as a whole.
With respect to Asst Prof Eugene Tan's enquiry about law students and law schools, the law schools are actually in the midst of refining their curriculum to expose students to doing more pro bono work. But as a general rule, we would want to cultivate an environment in the community where the legal community as a whole steps forward to do more pro bono and to support legal aid.
*Question put, and agreed to.*
*Bill accordingly read a Second time and committed to a Committee of the whole House.*
*The House immediately resolved itself into a Committee on the Bill. – [Ms Indranee Rajah].*
*Bill considered in Committee; reported without amendment; read a Third time and passed.*
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PAPERCUTS