Mr. Conor Dignam:

I thank the committee for the opportunity to address it on a very important topic. For any legal system to operate at its optimum level access to justice must be available to all. Justice is a fundamental value that is important and essential to the lives of every citizen in a functioning democracy. Members of the Law Library play what we consider to be a vital role in promoting and safeguarding the right to access to justice. The principles that barristers are independent, owe an overriding duty to the administration of justice and that the interests of their clients must be and are defended fearlessly are at the heart of the independent referral bar and the regulatory framework that governs members of the Law Library. All of those principles and rules are contained in our code of conduct and that code binds each member of the Law Library. The code also contains what is known as the cab rank rule, which precludes members from refusing to take on a case based on their distaste for its nature, or that of the client, the client's conduct or opinions. This rule plays a very important part and role in ensuring that all members of society have the ability to access the courts and justice with the benefit of expert legal advice and representation. It means that the consumer, the client or the litigant has access to expert and experienced legal representation.

Members of the Bar provide their services through a variety of structures, on the basis of legal aid, on the basis of fees charged, pro bono and fourth, on a "no foal, no fee" basis. I have made a detailed written submission which I know the committee will consider very carefully. In this opening statement I will outline the headlines. We have had the benefit of hearing from Ms Barry on behalf of FLAC and will hear from the Legal Aid Board in due course. It is fair to say that we echo much of what Ms Barry had to say about the necessity for reform and improvement in the legal aid system.

I will address legal aid first. Legal aid has long been recognised as vital to ensuring that a person's constitutional rights have access to the courts and to a fair hearing. The availability of legal aid to those who cannot afford legal representation from their own means is an essential element of the administration of justice in a democratic society. Many recipients of legal aid are among the most vulnerable members of our society and their access to the legal system must be supported and protected. Through the participation of barristers in the provision of civil and criminal legal aid schemes, legally aided clients have the benefit of representation by barristers with experience and expertise. Unfortunately, however, the civil legal aid system in Ireland is chronically under-resourced and significant additional resources are urgently required if a scheme is to provide meaningful access to justice to those most vulnerable members of our society on a long-term and sustainable basis.

Ms Barry has referred to the need for improvements in the eligibility thresholds and the areas of law covered by the civil legal aid scheme and we share and endorse those views because they are necessary to ensure that the constitutional right of access is promoted and supported and secured through the civil legal aid scheme. There is also evidence from the World Bank that there are considerable economic gains to be garnered from increased investment in legal aid.

We have dealt with how those economic benefits accrue through investment in the legal aid scheme in our detailed submission.

We are anxious to emphasise that investment in the civil legal aid scheme should not be seen in isolation. There is little point in investing in a civil legal aid scheme that ensures more individuals have access to a legal system if there are blockages further down the line within that system. The civil legal aid scheme needs to be amended and improved but there also has to be investment in the court system. Constricting budgets are making it harder for the courts to do their work. A series of studies by the European Commission for the Efficiency of Justice, CEPEJ, illustrate how since 2010 Ireland's expenditure on its judicial system relative to GDP is consistently lower than that of neighbouring jurisdictions.

According to the Doing Business survey, conducted by the World Bank group for 2020, Ireland ranks 91st out of 190 countries in the category on ease of resolving a contractual dispute. That is dealt with in detail in our submission but it appears to be the case that Ireland's low rank is largely attributable to its low scores for case management, court automation, and time. Court automation is a function of the lack of investment in IT structures for the court system. Case management and time are directly in respect of the ongoing shortage of judges.

The shortage of judges means delays in the courts system and such delays are themselves an impairment on access to justice. It is undoubtedly the case that a wide series of reforms is required so that timely and efficient access to justice can be secured by every citizen and litigant in the State. We deal with those various reforms in our detailed submission. We also welcome the upcoming publication of the administration of civil justice review, which was chaired Mr. Justice Peter Kelly, the President of the High Court, and in which the Bar Council participated. That review and the recommendations in that report can only be given effect and generate benefits, which I know that this committee wishes to secure in the area of access to justice, if those recommendations are properly supported by funding from the Executive.

The second way in which the Bar provides its services is, of course, on a fees basis. The council recognises that unduly high legal costs can constitute a barrier to access to justice. Contrary to popular narrative, Ireland is not found to be a high-cost jurisdiction for legal costs. According to the World Bank survey mentioned earlier, of the eight common law jurisdictions compared by the survey, Ireland has the fourth lowest lawyers' fees at 18.8% of the value of the claim, which is almost identical to the figure in Australia of 18.5%. That survey also shows that the total cost of resolving a contractual dispute, to include lawyers' fees, court fees, and enforcement costs, is similar to that of Singapore, which is ranked first in the world for the total cost of resolving such a dispute. The overall percentage costs in Ireland are 26.9% while it is 25.8% in Singapore. It is also the case that the market for barrister services is more competitive than it has ever been. This has led to considerable reductions in fees paid to most barristers. One factor that has contributed to this reduction is the long-standing requirement introduced by the Bar unilaterally that on receiving instructions from a solicitor, a barrister must provide a written fee estimate to the solicitor. That requirement is set out in our code of conduct and this obligation was reinforced by having been put on a statutory basis by section 150 of the Legal Service Regulation Act 2015.

That increased transparency and information provided to the consumer through solicitors will have, and has had, the inevitable effect of generating more competition among practitioners. It allows consumers to be aware of the proposed fees and to negotiate accordingly. That, in itself, inevitably has a downward pressure on legal fees.

Those rules generally do not apply where legal services are provided to the State because in those circumstances, work is generally provided according to a fixed schedule or scale of fees unilaterally set by the State. State bodies are the largest consumer of legal services in Ireland and in circumstances where work and services are provided to such bodies, there is little or no negotiation on fees on the part of counsel because fees are set by the State. The high standard and low-cost representation secured by State bodies has been recognised by the Government in its 2018 spending review report on criminal legal aid.

It should also be emphasised that similar to public and civil servants and other State contractors, severe cuts were applied to barristers' fees during the economic downturn. Since 2008, cuts to professional fees have ranged in the order of 28.5% to 69%. There has been no restoration of those fees in the intervening years. These cuts impact directly on the question of access to justice that the committee is concerning itself with. These fees make it unviable for many legal practitioners to continue to participate in State-funded schemes such as the civil and criminal legal aid schemes.

On the criminal front, there is an emerging shortage of experienced junior barristers who can survive the early years of poor income from a criminal practice. This should not be just of concern to the Bar Council and to barristers but should be of a wider societal concern. If this is not addressed, it will mean that there will be fewer barristers to provide services to litigants, particularly in the criminal sphere, which will have a direct impact on their ability to access justice by way of mounting a proper defence. This will have an adverse impact on the administrative of justice and on the public good.

Irrespective of the level of costs, there will always be individuals who simply cannot afford legal services from their own means. In the absence of a proper and adequate system of legal aid that ensures their right of access to the courts, members of the Law Library, along with organisations such as FLAC and community law centres such as Community Law and Mediation, strive to fill that gap by providing their services either on a pro bonobasis or, in some instances on a no foal, no fee basis.

Some 82% of the members of the Law Library undertake pro bonolegal work. The voluntary assistance scheme is the formalpro bonoscheme of the Bar of Ireland, which makes the full range of barrister services available directly to charities, NGOs, and civic society groups on an entirely pro bonobasis. The details of that scheme are contained in our submission. Members of the Law Library also provide voluntary legal assistance to a number of community outreach projects that operate outside of the Bar, such as the Community Law and Mediation centres.

In appropriate cases that are not covered by the civil or criminal legal aid schemes, a barrister may be willing to take on an individual client case on a no foal, no fee basis. This means that a barrister will not be paid unless his or her client is successful in the proceedings. This is, in effect, a free legal aid scheme operated by barristers at their own risk. It provides many people with access to the courts where they would not otherwise have such access. The importance of the no foal, no fee structure and system has been highlighted by FLAC and independent law centres such as Community Law and Mediation in circumstances where there is no comprehensive civil legal aid system in the State. The no foal, no fee structure is frequently applied in constitutional and public interest litigation and the availability of such services has unquestionably benefited the recognition, protection, and vindication of constitutional rights of individuals, including the right of access to the courts. Many of the landmark cases in the constitutional sphere have been brought on a no foal, no fee basis. Pro bonoand no foal, no fee work play an essential role in ensuring access to justice but I emphasise that they should not replace an adequate legal aid system.

We are grateful for the opportunity to address the committee on these important topics.

We are obviously available to answer any questions members of the committee may have.