Mr. Ken Murphy:

I note Deputy O'Callaghan mentioned the conflation at times of clients and lawyers and this may be a problem because those who are accused of crimes tend to be unpopular figures in society. Various Ministers have said to me over the years that there are no votes in giving more money to criminal legal aid. If the Chairman will permit me a slight moment of levity, it makes a point. Many years ago, a survey was carried out by our counterpart organisation, the Law Society of England and Wales, about public attitudes to the funding of the criminal legal aid system. It was a full professional survey and the question essentially was whether people who are accused of serious crimes and who have no financial capacity to defend themselves should be provided with a legal solicitor or barrister to represent them and defend their interests at the expense of the taxpayer. The answer, properly analysed, was the public felt yes such a person should, if he or she was innocent. I am making the point somewhat ironically but it shows that there is a degree of ambivalence in the public mind about the funding of criminal legal aid and one only has to listen to a radio phone-in programme on this topic and there is criticism of it.

While I take the point Deputy Connolly made about having a healthy democracy and an independent and strong Judiciary and what these measure in society, I would like to emphasise criminal legal aid a little and echo what has been said by the Bar, which is there is a real problem at the moment with the funding of criminal legal aid. The Law Society in its submission read out by the president a few moments ago, has a phrase we have used in submissions to Government. The phrase we have chosen is, "borderline uneconomic for the provision of criminal legal aid". The firms that specialise in it and the firms that do a certain amount of it are just simply questioning whether they can continue to do so. In neighbouring jurisdictions, like we have seen in England and Wales, there are now parts of the country where a far more generously funded criminal legal aid system is also becoming borderline uneconomic for certain providers such that the phrase that is used is "legal aid deserts". There are big geographical areas in England and Wales where no solicitor participates in criminal legal aid because of the funding issue.

Again, the Law Society has explained the consequences of the cuts that took place. We accepted the cuts that took place at the time of economic crisis in the State. In 2009, 2010 and 2011, I sat in meetings with the then Minister for Justice and Equality, Alan Shatter, and he explained the public finances and the need for the cuts. We did not protest the cuts, which were quite severe, and much more severe in the criminal legal aid system than in many other areas of State services. The figure we said was 26% but in fact, calculated in different ways it could be measured as being up to 40% and the Bar had other figures. Those were really severe cuts. There has been absolutely no restoration. While the State has restored funding to many areas where there were cuts during the economic crisis, there has been no restoration here. The Law Society has made representations to the then Minister for Justice and Equality, Frances Fitzgerald, and the current Minister for Justice and Equality, Deputy Flanagan. There is sympathy for the case that is made. There is recognition that it is becoming uneconomic. I am looking at the public interest and not the interest of the profession in this regard if lawyers cease to practice in this area. The people who do a lot of legal aid in the solicitors' firms cannot retain staff. They are transferring to other areas where they are paid better with better lifestyles, instead of going out in the middle of the night to Garda stations and spending endless hours there, They also spend endless hours, for example, on another feature nowadays, which is the review of CCTV. Hours and hours of CCTV have to be reviewed by the solicitor as part of his or her preparation of the case. That is not funded or paid. It is a rate per case and there is no funding of that.

I will just finish on this point. In the neighbouring jurisdiction of England and Wales, they have been able to document one consequence of this, which is the age of the cohort of the profession that provide criminal legal aid is increasing all the time. I think they said 49 years old is the average age in England and Wales. We have not done that research here but it is because young lawyers are not going into this work or, if they go into it, are not staying in this work. That has consequences for the future of the entire scheme and we believe that unless there is funding and the capacity to address funding of the scheme and to make it economic again for solicitors to provide it, there will be long-term problems in the delivery of criminal legal aid in this country, which is one of the measures of our status as a democracy.