Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The purpose of this part of the meeting is to have an engagement with the Minister on the topic of criminal legal aid. On behalf of the committee I welcome the Minister for Justice, Home Affairs and Migration, Deputy Jim O'Callaghan, and his officials to the meeting. I thank the Minister for agreeing to meet us at short notice. I am aware that he is due in the Seanad at 6 p.m., so the format of the meeting will be that we will ask the Minister to give a five-minute opening statement and then we will call the members of the committee in the order in which they indicate to put their questions. Given the timeframe, we will be limited to five-minute interactions. I ask members to stick to the time. I invite the Minister to deliver this opening statement.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Chair and the committee for inviting me before it this afternoon to talk about the proposals I have and the changes implemented for a criminal legal aid scheme in the District Court that were signed into law yesterday and will come into effect tomorrow. I will frame it in the context, in the first instance, of the programme for Government commitments. Members may be aware that in the programme for Government there are two or three commitments in respect of criminal legal aid. The first is restoration of the fees that are due to criminal law practitioners, on which we all campaigned during the most recent election. I am very pleased to say that, as of tomorrow, the 8% cut is being reversed and there will be an 8% increase for all criminal law practitioners.

The second proposal in the programme for Government is to reform the operation of the criminal legal aid scheme. I will come to that presently. The third one is to enact the criminal justice (legal aid) Bill, which I hope to progress next year. That will have the effect of transferring responsibility for criminal legal aid from the Department of justice over to the Legal Aid Board.

I fully recognise the importance of the criminal legal aid scheme, not just in the District Court but throughout all of our courts. It is essential in order to vindicate the rights of individuals. However, I also have an obligation to look at the efficiencies within the District Court and how I, on behalf of the public, can improve efficiencies within the District Court. Between 2015 and 2024, the cost of criminal legal aid in the District Court increased from €19 million to €37 million. That is notwithstanding the fact that there has been a decrease in the volume of criminal cases before the District Court. The Courts Service report will reveal that there was a further decline in case numbers in 2025.

The Cathaoirleach will be aware that the model of payment in the District Court is that solicitors are paid a fee for first appearance of €240 and then a payment of €60 for each adjourned hearing. The officials in my Department conducted a review of the data over the period from 2020 to 2023. We focused on those issues in terms of criminal legal aid and how the system can be made more efficient. One of the fundamental findings was that hearings and appearances for cases in the District Court funded via criminal legal aid take considerably longer than that are not funded in this way. Cases funded by mans of criminal legal aid in the District Court take, on average, 313 calendar days. This compares with 133 days for cases that are not funded by means of legal aid. The weighted average number of appearances regarding cases involving criminal legal aid is just five. For cases in respect of which criminal legal aid is not paid, the average is just over three appearances. The review identified inefficiencies in the system and the fact that there are perverse incentives. Obviously, the more adjournments there are, the more people get paid.

I also cannot ignore the fact that there are abuses going on with the system. I do not think anyone who comes before the committee and who is questioned about this will dispute the fact that there are such abuses. In particular, those abuses centre on the fact that persons who are charged with more than one offence. It is regularly the case that if a person is before the District Court, they will be frequently charged with three or four offences. Frequently, what happens is that those charges are separated and separate fees for different individual solicitors within a firm are charged. As a result, there is a payment of €240 for each charge before the District Court. What I am proposing to do - I have done it because I signed the statutory instrument yesterday - is introduce on flat fee of €520. As stated, the current fee is €240. The reason I have set it the new fee at €520 is because I took into account the fact that the average number of appearances for criminal cases funded by mean of legal aid is five. If we take the €240 for one appearance and add €60 for each of the other four appearances, that brings us up to €480. I have then added in the 8% due in terms of the increases. That brings it up to €518. I then rounded the figure up to €520. It is a very generous fee when we look at the fact that many people who come before the District Court are going to be dealt with very promptly.

We also need to recognise that the District Court is a court of summary jurisdiction. It is where cases are supposed to be dealt with promptly. I am aware that there may be occasions when adjournments are necessary. Adjournments may be sought by the State. However, this is going to make the system more efficient. When a garda or an official acting on behalf of the State comes in looking for an adjournment in the future, that will not be granted as easily. If adjournments are going to be granted, they will be granted for a period that will allow us to ensure that the reason for the adjournment is complied with. I am conscious that I only have five minutes. I welcome the opportunity to explain the changes.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I invite the members in the order in which they indicated to engage with the Minister. I remind members to stay within the five minutes.

Paula Butterly (Louth, Fine Gael)
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I thank the Minister for coming in at such short notice. It will be no surprise to him that I have had my reservations about this. I have spoken to the Minister on a number of occasions about the system that he is proposing and that will come into effect tomorrow. I will very quickly highlight what I think is wrong with what is proposed. First, we all believe that there should be access to the courts for all. We recognise the constitutional right to access criminal legal aid. First and foremost, I fear that what the Minister proposes will not deal with the real causes of delays in the courts. He mentioned that the District Court is a court of summary jurisdiction. However, it deals with hybrid offences that are sent forward to the Circuit Court. As a result, it deals with more than just summary offences and more than bog-standard public order cases. It is the very gates of our justice system, so it is of major importance. What the Minister is proposing does not deal with late production of books of evidence, the delays in DPP directions, outstanding reports, etc. Also, I do not think he has taken on board the complexity of the cases involved. He outlined that there has been a reduction in the number of cases. However, I have not seen any evidence of instances where he or his officials have researched the complexity of the cases that come before the District Courts. That is something that is gravely missing.

I am also very concerned in terms of what the Minister said in the Dáil when he proposed these reforms. I believe reform is necessary. We have to be more efficient. However, the Minister stated in the Dáil that all of this is not intended to reduce the cost to the State of criminal legal but, rather, that it is to reform the system in order to ensure that it works better for the courts and, most importantly, citizens. However, the review shows that a specific purpose of what is proposed seems to be to reduce costs and save the State money. "We are going to save money" is a great soundbite for the public, but this is going to compromise the access to justice. If access to justice is compromised and if we cannot give people a fair right to a hearing, it will not just affect those who are accused; it will also affect victims. I would like the Minister to withdraw the statements he made on the record of the Dáil in this regard.

It appears that the review has never been shared with the relevant stakeholders. When he is proposing such a monumental change to our criminal legal aid system, it is vital that, from the very beginning and to the very end, all the key stakeholders are involved. This does not appear to be the case. The very fact that the Gallery is full of professionals shows that they feel they have not been heard.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I will let the Minister in to respond.

Paula Butterly (Louth, Fine Gael)
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Once again, the Minister is doing a huge injustice to the profession and to the people who are trying to access the courts. I am stumped by the fact that the review suggested a fee €580. The next suggestion was €455. We are now up to €520. Will the Minister address that matter, please?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Like the Deputy, my emphasis is on ensuring access to the courts for all. She mentioned that I am doing an injustice to the profession. I have great respect for legal professionals. I was a legal practitioner for 30 years. I have huge respect for the profession and the crucial role it plays in the administration of justice. My sole focus here, however, is the public. My sole focus is doing what is best for the public.

Paula Butterly (Louth, Fine Gael)
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I do not think the Minister is doing so.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Sorry, the Deputy has to let me answer the questions.

Paula Butterly (Louth, Fine Gael)
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Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The first issue she raised was about me not taking into account the complexity of cases that are sent forward to the Circuit Court. If a case starts in the District Court and goes forward to the Circuit Court, it will attract Circuit Court fees. The only changes I am making to the criminal legal aid scheme in the Circuit Court is that, as of tomorrow, I will be giving everyone an 8% increase. It does take into account the complex cases which go on to the Circuit Court or, indeed, to the Central Criminal Court.

I agree that reform is necessary. I have emphasised that my primary reason for doing this is because I want to see a more efficient District Court. Some minor cases are having up to 14 adjournments. If we can get away from a system where there are constant adjournments, we will see the District Court less clogged up and the system operating more efficiently. We also have to recognise that every time there is an adjournment, State officials have to be present in the court.

I will not be withdrawing anything I said in the Dáil. That is my primary purpose, but I also cannot ignore the fact of the abuses that are ongoing in the system. In my opening statement, I referred to the fact that for one accused who was charged with 63 charges of brothel keeping, the solicitor representing him got 63 separate legal aid certificates in the District Court. That is a total of over €14,000 for one day. If that was reported by an investigative journalist and brought to the attention of this committee, I have no doubt that the Cathaoirleach would drag me in.

If he became aware that I had information about the matter and had done nothing about it, my position would not be tenable. When I have information, I have to act on it. I do not propose to resile from it.

My officials tell me that the data was presented to the Law Society and the Bar Council in October 2025. At the end of my opening statement, which I will not going into now, there is a section entitled "Engagement with The Law Society". The Deputy can see from that how engagement started last year. I have a good relationship with the Law Society. I very much respect the outstanding work done by solicitors on behalf of people who are involved with the criminal justice process. I have to prioritise the interests of the Irish public.

Paula Butterly (Louth, Fine Gael)
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The Minister also has to give the public confidence in the legal system. He identified abuses and said that he has identified 339,000 cases, but he did not say how many cases are involved in this instance. He has talked about a case here and a case there. People have to have confidence in the legal system-----

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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If we have time, I will allow the Deputy in for a second round.

Paula Butterly (Louth, Fine Gael)
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I thank the Cathaoirleach.

Mark Ward (Dublin Mid West, Sinn Fein)
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I was at a meeting with solicitors earlier in preparation for this meeting. A number of barristers were also there. It was organised by the Cathaoirleach. Some of the people who were at that meeting are in the Gallery. There was a litany of criticism of the Minister and his Department regarding how they have handled the proposed changes to the criminal legal aid system. The assertion that solicitors are the cause of delays was robustly contested. The Minister mentioned that. He talked about 14 or 15 adjournments in some cases. He also talked about data. I am interested in the data. I am also interested in how he came to this conclusion. Will the Minister outline the percentage of adjournments that are caused by the State? Will he provide an exact figure or a percentage and indicate the data he used to come to this conclusion?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I have no difficulty with Deputy Ward or members of the legal profession criticising me. The problem with the system existing system is that adjournments, no matter who is seeking them, are being granted too readily and repeatedly. I have no doubt that there are occasions when the State seeks adjournments in respect of criminal prosecutions in the District Court. There are going to be adjournments. That is why I am paying for five appearances under the criminal legal aid scheme. In terms of the delays, what is proposed will, if people know they will not be paid every time a case is adjourned, necessarily reduce the number of adjournments.

Mark Ward (Dublin Mid West, Sinn Fein)
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Are adjournments recorded?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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They probably are. They are certainly recorded when it comes to certificates for payment. If you look at payments put-----

Mark Ward (Dublin Mid West, Sinn Fein)
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Are the reasons for adjournments recorded?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I doubt they are recorded. There can be reasons for adjournments, but they are too casually presented and too casually agreed to by both the State and the accused. The benefit of this is that if the State is looking for an adjournment, that adjournment will be vigorously opposed by the accused unless it is absolutely necessary. Alternatively, if an adjournment is necessary, let us grant it for the three months necessary to get the report as opposed to just adjourning the case for two weeks in the knowledge that it will be adjourned again for another two weeks.

What is proposed will really improve efficiencies in the District Court. What I will do is keep it under review and see how it is progressing. However, my view is that if you incentivise people by way of payment for every adjourned hearing date, you are going to get more adjourned hearing dates. That is just natural.

Mark Ward (Dublin Mid West, Sinn Fein)
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As the Minister said, a lot of the adjournments are outside the solicitor's control, but it seems they are the ones paying the price for these adjournments. As a layman, I am of the view that this is what seems to be happening.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Five hundred and twenty euro is a good fee. In terms of a District Court hearing on a Monday morning involving a couple of people being prosecuted for public order offences, they will get probation or they will accept what has happened. A fee of €520 will be paid in respect of that hearing.

Mark Ward (Dublin Mid West, Sinn Fein)
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The reason we have legal aid is that there is a cohort of people who cannot afford a private defence.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Of course, and it is a general system.

Mark Ward (Dublin Mid West, Sinn Fein)
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It is to even things out. We are talking about a flat fee of €520. It does not matter how many trials-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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For half an hour in the court.

Mark Ward (Dublin Mid West, Sinn Fein)
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It could be a lot more than that.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It could be.

Mark Ward (Dublin Mid West, Sinn Fein)
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The Minister mentioned 14 or 15 adjournments. I do not think that is going to stop overnight.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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There will not be 14 or 15 adjournments under the new scheme

Mark Ward (Dublin Mid West, Sinn Fein)
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There is going to be a two-tier system in respect of those who have and those who have not. The Minister mentioned that he was at the Bar for 30 years. What was his flat rate for an hour?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I was told when I was young that crime does not pay. I did not do any criminal work at the Bar. In terms of a two-tier system, I must point out that such a system operates at present in respect of those who have criminal legal aid and those who do not. The latter have their cases heard, on average, across three appearances. Those are the statistics I presented. Cases that are funded on the basis of criminal legal aid involve five appearances.

Mark Ward (Dublin Mid West, Sinn Fein)
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The Minister mentioned that many solicitors are engaging in activity to maximise profits. How widespread is this activity and where did he get his data? What has he done to address that issue? If people are maximising profits and using the system to benefit themselves, why are we targeting everybody as opposed to targeting those individuals?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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We have to reform. If you look at the regulations and how regulation 74 is being applied, it can been seen that it is not being applied in the way the State wants it to be applied. It is being applied in the District Court, and we are seeing and continuing to see certificates being granted across the board when there are a number of charges against people.

Lynn Ruane (Independent)
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I welcome the Minister. He can see that this is a heated debate. We focus very much on the potential abuses in relation to solicitors and whether such abuses exist. My concern is the end user, namely the person before the court whose life involves the most complexities. I am concerned about whether this model recognises the reality for some of those people in the context of addiction, mental ill-health, intellectual disabilities, low levels of literacy and any sort of language barriers. We look at prison as a last resort. We also look at the idea of introducing community sanctions and how you build whole models around people and how many times they may have to come back to the court and be able to have a solicitor who works with them to assess their needs. This is approximately 1% of the budget. I do not know where the efficiencies are being made. The Minister can correct me about legal aid for criminal defence being 1% of the budget. In terms of efficiencies in the system, you can look at the complexities of cases. The system within the District Court is archaic. It is a paper-based system, with a number of civil servants stamping and posting forms prior to payment. Is there no other way to look at efficiency, other than in the context of the power of the State in terms of prosecuting people? You have the apparatus of the State, and you are potentially gutting talent in criminal defence. They say they are not going into it because of the amount of time it takes them to support the complexity of the cases and to prepare cases.

I am going to throw all of my questions on efficiency at the Minister. That is not a pun. Is he aware that An Garda is also concerned about how this may affect its cases in terms of gathering evidence over time? Has anybody raised concerns with the Minister about judicial reviews and fair access to justice and effective legal representation?

As regards those who the Minister says abuse the system, I am not saying that this does or does not happen. Is there not already a control in place to prevent those abuses where the presiding judge can direct the solicitors not be paid if the adjournment is for the convenience of the solicitor? There has to be a way that judges can take things into account. They are presiding over the courts. Can they not see why adjournments are or are not being asked for, and whether or not they are legitimate, rather than gutting criminal legal aid?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will talk about the total expenditure, which was the first question the Senator raised in the context of criminal legal aid. In 2024, €89.4 million was spent by the State. In 2025, that went up to €120.6 million. The State is spending huge amounts of money on criminal legal aid and is fulfilling its responsibility to ensure that people before the criminal courts who do not have the means of payment are being adequately represented.

As stated, if you look at what is happening in the District Court, you will see that the total cost of criminal legal aid was €19.2 million in 2015. That was on the basis of 53,937 certificates. If you look at 2025, the cost in the District Court has gone up to €40 million. There has been a 100% increase over a period of ten years, and the number of certificates has gone up from 53,000 to 98,000. The number of criminal cases in the District Court has gone down. I cannot ignore that.

In respect of the Garda, the administration of justice will and must continue. Solicitors will play their responsible role in that regard.

The Senator is particularly interested in the people before the courts or the users. I am also very interested in that but I also have the broader interest of the public at large when it comes to the administration of justice in the criminal courts. I believe An Garda Síochána is well-placed to ensure the administration of justice continues in terms of what it has to do.

The Senator spoke about judicial reviews. There has been a judicial review. Ms Justice Siobhán Phelan gave judgment recently in respect of judicial review that tied in with what the Senator was talking about in terms of regulation 74. She gave a decision in respect of that and the State won in that case. Notwithstanding the provisions in regulation 74, the effect of it is that in a significant number of cases, if there are a number of charges against one person, what is happening is the certificate is being broken down in respect of each charge. In a District Court, that should not operate because it is a court-----

Lynn Ruane (Independent)
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Should preparation not be different for each case? If each case requires a different defence, are we not looking at levels of preparation compared to those cases being separated out?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I do not believe so. If you look at somebody who is before the court in terms of a public order offence, an assault offence or theft, those three charges are all heard by the judge on the same day. It is summary. It is dealt with promptly in the District Court and that is how justice operates there. It is not like in the Central Criminal Court. You do not have a jury. It is court of summary jurisdiction where cases are to be processed and dealt with subject to ensuring compliance with the principles of justice. They are supposed to be dealt with summarily and promptly.

Gary Gannon (Dublin Central, Social Democrats)
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I thank the Minister for coming in. Regulation 74 has not been applied. Whose job is it to apply it?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is the court that is asked in the first instance to set out the reasons-----

Gary Gannon (Dublin Central, Social Democrats)
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It is the courts that are failing. I do not have long. That is a court failing, not the failing of a solicitor. When it comes to adjournments being granted too readily, whose failure is that?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It depends who is applying for them. If the court determines it-----

Gary Gannon (Dublin Central, Social Democrats)
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Who is granting them?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It depends who is applying for adjournments. If the accused is unnecessarily applying for adjournments, it is the accused's fault. If the prosecution is unnecessarily applying for adjournments, it is the prosecution's fault.

Gary Gannon (Dublin Central, Social Democrats)
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The Minister has said €520 for half an hour in the court. He just said that. Does he believe half an hour in the court is how a criminal solicitor will spend their time? Is there no preparation for the case or engagement?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Obviously there is a variety of different cases in the District Court but if the Deputy looks at somebody who is prosecuted for a public order offence which happened on a Saturday night, they are before the courts shortly after that. They accept that they have done wrong. They are going to plead guilty. Money is paid into the poor box and there is no conviction. That is quick and it will be €520.

Gary Gannon (Dublin Central, Social Democrats)
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When it comes to the 339,000 cases under review, how many did the Minister find that were the fault of the criminal's solicitor when it came to the adjournments?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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When the Deputy says "the fault", what does he mean?

Gary Gannon (Dublin Central, Social Democrats)
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How many adjournments were the fault of the criminal's solicitor in the 339,000 cases he assessed?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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We looked at a variety. I am not going to give the Deputy all the cases here but there is a variety of numbers of cases we have looked out where the numbers of appearances is over ten in a lot of cases.

Gary Gannon (Dublin Central, Social Democrats)
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I get that but how many were the fault of the solicitor?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Many of them are the fault of the solicitors and many of them are the fault of the prosecution.

Sorry, I object to people in the Gallery shouting out abusive comments. The Chair is here to protect me as well.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I am sorry. I did not hear any abusive comments but I ask those in the Gallery to remain silent.

Gary Gannon (Dublin Central, Social Democrats)
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We cannot determine how many were actually the fault of the criminal's solicitor.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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We cannot determine that.

Gary Gannon (Dublin Central, Social Democrats)
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We are making a substantial policy decision without any databases behind it. We have established that. The Minister said that cases with criminal legal aid are substantially longer than cases without it. It is five court appearances on average with criminal legal aid and three court appearances without it. Why would that be the case? Does he accept that criminal legal aid cases are often incredibly more complex and often deal with issues of addiction? There is a reason they could take longer.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Some of them may be that but I do not believe they are more complex across the board. Non-criminal legal aid cases can be for assault, just as a criminal legal aid case can be for assault. Why should a criminal legal aid case take longer than a non-criminal legal aid case?

Gary Gannon (Dublin Central, Social Democrats)
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That is the question. What I am hearing from people who we ask to administer the law in courts is that they take longer because they are more complex, oftentimes dealing with addiction or issues which would be substantially different from those of somebody who is not availing of criminal aid for a driving offence, for example.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is about the nature of the offence. That is the primary issue that has been determined by the criminal court in the District Court, whether or not the accused is liable for the offence. If it is taking, on average, three days for a non-criminal legal aid case and five days for criminal legal aid case, there is something going on. Even accepting that, I am paying for five appearances with €520.

Gary Gannon (Dublin Central, Social Democrats)
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We also know that there will be complex cases where that will not be so. For example, the Law Society has sent on a presentation outlining a case where a person has 19 different appearances and the person has mental health issues. The court itself does not have a place in which it can place a person, so there will be substantially more appearances for that person. My fear is, and the reality will be, that the most complex cases involving children, issues with mental health and addiction will extend beyond the five-day average. These are also the cases where it will not be economically viable to have representation. The people who are most vulnerable in our system are going to find it the most difficult to access legal representation.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I disagree with the Deputy. One thing I will do is keep a close eye on how it progresses, particularly in the children's court. I have to take into account the data that has been produced. I will certainly keep into account how it develops in terms of the children's court.

Gary Gannon (Dublin Central, Social Democrats)
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The Minister said he had extensive engagement with the Law Society going back to October. Did his engagement with the Law Society going back to October contain the flat fee proposal? "Yes" or "No"? Was it made aware?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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No.

Gary Gannon (Dublin Central, Social Democrats)
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The statements today capture that perfectly. When the Minister said he had engagement, it was only in the last ten days where that proposal-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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No.

Gary Gannon (Dublin Central, Social Democrats)
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The Minister engaged but he did not actually engage with the most relevant facts.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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My officials met with the Law Society in January 2026 to discuss the flat fee proposal. That was dealt with earlier on this year.

Gary Gannon (Dublin Central, Social Democrats)
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The flat fee proposal has changed. It was €455. It was then €560 or €580 in the Minister's own analysis. It is now €520. It is a bit all over the place.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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A number of options were set out for me. The option I went for was the €520 because, as I said, that is for the €240 and four appearances after that, making a total of five appearances. It brings it up to €480, and the 8% on top.

Gary Gannon (Dublin Central, Social Democrats)
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In the review and reform proposals the Minister referenced, it was €580. The Minister has undercut his own analysis when it comes to the fee but he is backing it up when it comes to what he is taking away.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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No. I am entitled to make the decision in terms of what I think is the appropriate flat fee. I believe the appropriate flat fee on the basis of five appearances is €520. We will keep it under review.

Tom Brabazon (Dublin Bay North, Fianna Fail)
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The Minister has stated in his opening remarks that delivering efficiency in the District Court was an aim of this. I am looking at it from experience as a practitioner about why adjournments take place in the District Court. There are a good few reasons for that. In terms of the criminal legal aid aspect of it, what the Minister has highlighted in terms of abuses of the system, as such, are only a small part of that inefficiency of the District Court.

I will go through some of the reasons cases are adjourned, from my experience. Sometimes a District Court judge might call in sick and not be available. Sometimes a different judge might turn up and the original judge would have had seisin of the case. A no-show by a defendant or a garda can lead to an adjournment. The book of evidence may not be ready. This can happen on numerous different occasions. Witnesses may not be available, despite being summonsed to court. There may not be an assessment of fitness to plead being ready. Directions from the DPP may be awaited. These are things that are outside the control of the individual practitioners. Is there any proposal to look at all of those sources of adjournments in terms of delivering efficiencies in the District Court?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Deputy Brabazon. The purpose of the flat fee is to try to reduce the number of adjournments, to make practitioners and the courts recognise that we need to deal with these cases promptly and without repeated adjournments. What will happen now, if there is a no-show by a garda, is the accused's representative will ask for the case to be struck out, as they should. If a garda does not turn up for a prosecution, the case should be struck out; unless there are reasons, it is a matter for the judge. It is the same when witnesses are not available. The system that will be introduced will increase efficiencies because we will no longer have the casual approach where everyone will ask to adjourn it repeatedly. That is not an effective or efficient way to run a court system.

Tom Brabazon (Dublin Bay North, Fianna Fail)
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The Minister made a remark, albeit in a jocose way, about crime not paying.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It was a joke.

Tom Brabazon (Dublin Bay North, Fianna Fail)
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I know that. It was a surprise but I was looking at the figures for individual practitioners going back to 2024. One solicitor earned €842,000 in the year, one junior counsel earned €832,000 and one senior counsel earned €553,000. They are significant sums paid to practitioners. Does the Minister believe this will have any material change in the position of the high earner cohort of the criminal aid practitioners?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I was making a joke but perhaps committees are not the place for jokes.

In terms of earnings, I have no difficulty with lawyers whether criminal practitioners or others earning a good living and a decent amount of money but when it comes to the public purse and the administration of justice, I have a responsibility in respect of that. As the Deputy said, a lot of people are making very good money from criminal legal aid alone before taking into account their other practices. In a calculation of the figures for 2025, approximately 200 solicitors earned over €100,000 in 2025 from criminal legal aid alone. Fair dues to them; they are doing their work but I have an obligation to make the system in the District Court more efficient. Unquestionably, this will make it more efficient.

Tom Brabazon (Dublin Bay North, Fianna Fail)
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Is there any proposal in respect of the paper processing of legal aid claims? There seems to be a very inefficient service in the District Court. I am not sure if it is the LA1 or LA 2; it is sent in either by hand or by post to the court clerk. It is then verified for onward transmission to Killarney, I think, for payment.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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This will improve that considerably.

Tom Brabazon (Dublin Bay North, Fianna Fail)
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It is a very inefficient system.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Now, when you send in your one certificate, that is a certificate for payment as well. There will be a new LA1 form which will make it much more efficient and you will get paid at the end of the case.

Albert Dolan (Galway East, Fianna Fail)
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I thank the Minister for being with us today and taking us through the proposals and what is happening. A significant number of concerns have been raised by the legal profession. With payment only becoming due on the final order, that seems to pose a problem. If a client was to switch solicitors or take a bench warrant, that leaves the original solicitor out of pocket for all the work done to that date. How can that be fair on the first solicitor who took the case? Could half the fee become payable on the first day with the balance on finalisation? I have come across this a few times. The payment is not until the whole situation is finalised. The previous system benefits the first solicitor more. They would get the recurring payment but with the flat fee, if that entire flat fee was to go to whoever the last solicitor to take the case, I could see that presenting an issue.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I understand if there is a movement to another solicitor, the €520 just goes to one solicitor and not the other. We will look at it.

Albert Dolan (Galway East, Fianna Fail)
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I appreciate that because it has been brought up a few times and it is a concern.

There are essentially unlimited appearances for the same fee. I understand in the District Court is designed to be an expedient form of getting through the process but I would like to discuss the consultation to date with the Law Society of Ireland in particular. I met the Law Society of Ireland on 12 May, I think. I had a very positive engagement with it to hear the concerns and the sentiment. I also met Deputy Connolly and some solicitors in Galway to hear their concerns and subsequently wrote to the Minister's office. How does the Minister feel consultation with the profession has gone to date?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I very much respect and value the professions, the Law Society of Ireland and the Bar of Ireland. The Department commenced engagement on the criminal legal aid issues in the District Court with the Law Society of Ireland in 2025. On 15 October 2025, my officials met both representative bodies to discuss the findings of the papers highlighting the issues. Following this meeting, both bodies were invited to make submissions on the issues by my Department by 14 November. My officials considered the submissions from the representative bodies. Officials met the Law Society of Ireland again in January to discuss the flat fee proposals. The Department held another meeting on 5 March with representative of the Law Society of Ireland to further discuss the flat fee proposal. Following this meeting, my Department invited written submissions from the Law Society of Ireland on the proposal. The Law Society of Ireland subsequently provided a submission on 27 March addressing the proposed new system. I met the Bar of Ireland on 27 May, the Law Society of Ireland on 29 May and officials from the Department met the Law Society of Ireland on two further occasions on 16 and 18 June to discuss reform of the criminal legal aid scheme. There has been very significant engagement between my Department and the Law Society of Ireland.

Albert Dolan (Galway East, Fianna Fail)
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Engagement and consultation are important specifically around changes that will permeate throughout an entire profession. Following those engagements and the submissions by the Bar of Ireland and the Law Society of Ireland, what changes were made to the proposal other than the fee changing?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Originally, I had proposed that if a case was going forward on indictment to the Circuit Court, it would not attract a full fee. I changed my mind on that. Cases sent forward for trial in higher courts will now attract a full flat fee of €520. There is the introduction of a separate fee for certificates issued in respect of the execution of bench warrants, multiple defendants which under the old system attracted lower fees will now each attract full, separate flat fees of €520 and there are no changes to payments to counsel under the non-statutory Carmody scheme. I have taken all those factors into account. I have listened carefully. As I said, I have great respect for the Law Society of Ireland and the Bar of Ireland. My sole focus as Minister for justice is to represent the interests of those seeking access to the administration of justice. I cannot prioritise the interests of members of the legal profession. If I did, I am sure the Chairman would criticise me for looking after mates. I do not do that. I am here to look after the interests of the Irish public and those who seek access to justice.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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There is a vote in the Dáil. If the Minister can stay, I will.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will stay.

Anne Rabbitte (Fianna Fail)
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I thank the Minister. I will not repeat the questions that have been asked. He has answered quite a few of them already.

How will the Department ensure any proposed flat fees will not create pressure to conclude cases prematurely in a particular where adjournments are necessary for disclosure, instruction, medical and probation reports, treatment engagement, language support, working with children who need supervision or proper preparation of a defence?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will rely on the integrity of the solicitor profession and the Bar to ensure that does not happen. I could not conceive of a situation where a solicitor or barrister would seek to recommend to somebody to plead guilty in circumstances where they were doing it just to expedite the hearing if they thought the person was not guilty. That would not arise. I rely on the integrity of the profession for that.

Anne Rabbitte (Fianna Fail)
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Has data been collected on the various reasons for adjournments in the District Court? If not, is it proposed to collect this information?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It has not been collected. I know the number and extent of adjournments; I do not know the reasons. There may be various reasons but when it comes to adjournments, they are granted and sought too readily. The District Court is a court of summary jurisdiction where cases are supposed to be dealt with promptly and summarily. I am fully aware there may be more complicated cases but it is a court of summary jurisdiction. The complex, more serious cases are sent forward up the Circuit Court or the Central Criminal Court.

Anne Rabbitte (Fianna Fail)
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On the broader issue of budgets, the budgets of the DPP and Prison Service have ballooned over the past number of years in comparison with criminal legal aid. Why did we start with this?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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As outlined in the figures I provided, the growth in the cost of criminal legal aid in the District Court is significant over the ten-year period since 2015. It has more than doubled from under €20 million to over €40 million between 2015 and 2025. That is an issue with the District Court that I cannot ignore, especially given the fact that the District Court has summary jurisdiction. There are no juries determining criminal cases in the District Court, as opposed to the Circuit Criminal Court and Central Criminal Court. Cases should be dealt with promptly and moved on. The effect of all of these adjournments – there is data outlining the number of adjournments - is that it creates inefficiencies in the system. It requires gardaí to turn up on numerous occasions and it develops a lackadaisical response to the determination of a charge. It is something I want to change, and I am committed to doing so.

Anne Rabbitte (Fianna Fail)
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I thank the Minister. Earlier, in response to one of my colleagues, the Minister spoke about keeping this under review. Will he expand on that? How does he propose to keep this under review?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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We will keep a close eye on how the certificates develop and assess the data from the District Court. We have been assessing the data from 2022 and 2023. We will continue to assess data from the new regime, which starts tomorrow. If there are any unintended consequences or if we believe there are any issues that need to be addressed, we will come back and seek to address them.

Anne Rabbitte (Fianna Fail)
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Something that has not been addressed already is that some solicitors have already proposed to go on strike. No one has addressed that, so I feel it falls on me to ask the question. How will the system function if we have solicitors on strike, who previously provided the service?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I hope they do not go on strike. It is a very generous package. There are a lot of ambitious solicitors out there who will do the work for €520 per case in the District Court. That is how the process and work will be done. We must remember that the District Court amounts to a small part of the income of persons under the criminal legal aid scheme. There are still the Circuit Criminal Court and the Central Criminal Court. I hope solicitors recognise that this is a fair deal. I am taking into account five appearances in a District Court case and providing for a fee of €520. It is a fair system.

Anne Rabbitte (Fianna Fail)
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Finally, does the Minister feel there might be contagion? The are instances in the media at the moment in this regard. One such instance happened in Cork. Does the Minister fear there might be contagion around the country? I was involved in a strike years ago. I worked for a particular bank and the type of effort involved in the strike was one where people did not cross the picket line. Does he fear there will be contagion?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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That is a matter for solicitors. The administration of justice must, and will, go on. The most important people in the administration of justice are not barristers, solicitors or judges. Rather, they are the people who come before the courts, both those seeking access to justice and those subject to the administration of justice. They are the most important people. That is where my priority lies.

Robbie Gallagher (Fianna Fail)
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The Minister and his officials are welcome this afternoon. I thank them for being here. I welcome that the review has been undertaken. It is important that we shine a light on the efficiencies within the system, and this review seems to have done just that. I also welcome that the fee has been increased to €520, with an 8% increase contained within it. Notwithstanding all of that, however, some solicitors with whom I have spoken have made the point that they feel these changes are kind of modified based on the family law, private practitioner scheme. They said to me that that system is not working and that a lot of solicitors are walking away en masse from the panels. Their fear is that the same thing might happen with criminal law in the District Court. I seek the Minister’s thoughts and opinions in that regard.

I was going to ask a question regarding the engagement the Minister had in this regard, but he has covered that in great detail.

Following on from Senator Rabbitte’s question on the review, while I do not mean to press the Minister on this, is there a period of time in question? Are we saying that after six or 12 months, we will review how these efficiencies are working and that, if it transpires they are not working in certain areas, we will address them?

The Minister outlined the number of adjournments in his contribution. I speak very much as a layperson on this matter but, if I were a practising solicitor and requested an adjournment, ultimately, it is the Judiciary that decides on that adjournment. How much responsibility does the Judiciary have in this regard? Has it been handing out adjournments willy-nilly and too easily, both to the accused and the State?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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In respect of the first question, we will not see a departure of people from the criminal legal aid scheme because it is still a profitable scheme. As I mentioned, there is a published list that details payments to solicitors in 2025. I am sure Deputies have that list. It shows that there is a good and significant amount of money to be made under the scheme. As well as that, those figures reflect what is happening in the Circuit Criminal Court and the Central Criminal Court. If it were the case that it was the District Court on its own that was the source of income, people could still make a good living from it based on the €520 flat fee. That fee is in light of the fact that the average number of appearances is five. I am continuing that with this model.

With regard to conducting a review, this scheme comes in on 1 July. At the end of six months, I will be looking to see what the data is saying.

I am not going to make any commentary in respect of the Judiciary and the number of adjournments. Adjournments are granted on the application of either party in the litigation, whether it is the prosecution or the accused who seeks the adjournment. As I said, this flat fee system will reduce the casualness with which either side applies for an adjournment. If it is the State that is applying for adjournments, I am sure we will see an increase in applications for cases to be struck out.

Robbie Gallagher (Fianna Fail)
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I thank the Minister for his response. While I do not expect the Minister to comment on this, it appears that adjournments are handed out willy-nilly, if I can use that expression. That appears to be the case. The responsibility for that lies with certain individuals.

I welcome the fact that, in six months’ time, the Minister will review how this is working. Depending on that review, he is open to having a look of things. I welcome that.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I will ask a few questions. We also have a non-member whom I wish to allow in.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Is the Cathaoirleach aware that I have to be in Seanad Éireann at 6 p.m.?

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Yes. That is my intention.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I have to walk over there as well.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The crux of the difficulty I have from looking at the scheme is that the Minister set out that the old scheme, essentially, incentivised the seeking of adjournments. Is there not a built-in incentive for a quick completion of cases with the new scheme? In other words, there is an incentive for a solicitor to encourage their client to plead guilty early.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I do not think so. I rely on the integrity of the legal profession and solicitors before the District Court. No solicitor is going to encourage a client to plead guilty early for their own financial convenience. It is certainly the case, however, that if a solicitor gets paid a sum for every adjourned case, it will incentivise adjournments. We are only human.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The opening statement the Minister circulated to the committee in writing reads “the model [the existing or previous model] was subject to considerable abuse with many solicitors maximising payments through practices that were unethical”. The Minister cannot turn around and say that he is depending on the integrity of the same people who he describes as “unethical”.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I view the practice of splitting up charges against individuals and seeking a certificate in respect of each charge as unethical.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I presume the Minister would suggest it is a minority of solicitors who act in an unethical way.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I do not know the numbers, but certainly there are abuses in the system. I expect it is a minority but there are abuses in the system.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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How can the Minister then say there will not be any abuses of the new system? There will be a situation where a solicitor will get paid the same for half an hour’s work, as the Minister has outlined on about three occasions, as ten different outings in court.

How is there not a built-in incentive to try to ensure that, rather than the best outcome for the client, instead-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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There is a marked difference between what is happening here and suggesting to a client to plead guilty so the solicitor can get out of there quickly and get their fee in terms of moral culpability. I do not believe any solicitor would do that.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Okay. Is there not an incentive for someone in a law practice engaging in the criminal law scheme that they would try to identify the easiest cases?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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You get the cases that are presented to you. I do not think solicitors can be choosy in terms of the cases they get under the scheme. There is a list of solicitors who are there on the criminal legal aid scheme. On when cases are chosen, I do not think solicitors can cherry-pick and decide to take the easy cases where someone looks like they are going to have to plead guilty. I do not see that arising.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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On Thursday, the committee will launch a report on the review of the civil legal aid scheme. We had a substantive hearing. Many regions in the State are being called legal deserts in terms of the civil legal aid scheme. The consensus among all of the expert witnesses we heard from as to why that was the case pointed to the flat rate fee structure that had driven solicitors out, particularly in family law. It appears to me that we are now replicating that for criminal legal aid.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I do not believe so. There are major issues with the civil legal aid scheme that I am trying to address and that I want to address in the budget. The Cathaoirleach has questioned me on this in the Dáil in terms of Mr. Justice Frank Clarke’s report. I want to see progress on implementing the recommendations within the report. There are whole issues about thresholds there. I want to see that addressed. If there is money to be saved, that could be used for the civil legal aid scheme as well.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Will money be saved? The Minister outlined the rising costs from €19 million to €37 million, which is essentially double.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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In 2025, it was up to €40 million.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The Minister gave us the 2024 figures in his statement. The number of criminal legal aid certs also doubled in the same period. The Minister is suggesting that there is a lot of duplicity. What proportion?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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A lot of them are on the basis of a certificate for each charge in respect of-----

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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How often does that happen?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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We believe very frequently.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Who grants the certificates?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The judge will grant the certificates.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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This is the system the Minister has described as unethical.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is unethical, I believe, for the individuals who are solicitors to break up a list or to use different solicitors from a firm. Let us say someone was charged with three offences and a firm used Matt Carthy as the solicitor on one of the charges, Jim O’Callaghan as a solicitor on the other charge and Gary Gannon as the solicitor on the other charge, then, yes, I think that would be unethical.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The judge that grants those-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is too laxly done. It is too casual. The system needs to be changed. If this was subject to investigative reportage and on the news, the Cathaoirleach would be calling in the Dáil for me to come into the committee to answer questions. If he discovered that I had a report-----

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I am-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Let me finish. If the Cathaoirleach discovered that I had a report telling me about these things and I had done nothing, he would be calling on me to resign.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The difficulty is the Minister has highlighted a problem. The view of everyone we have spoken to is he is using a sledgehammer to crack a nut.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I disagree.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Every solicitor is essentially being tarred as being unethical.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I disagree. Think about it – €240 is being paid at present, plus €60 for each appearance. Now you get a fee of €520. It is a District Court case. It is a case of summary and local jurisdiction. There is a requirement for cases to be heard promptly and summarily. I think it is a fair fee.

Cathal Byrne (Fine Gael)
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I appreciate the opportunity to contribute today. I am a solicitor myself. While I do not practice in the area of criminal legal aid, nor have I ever been registered with the Legal Aid Board, a considerable number of my colleagues have expressed concerns that other committee colleagues have articulated.

I will pick up where the Cathaoirleach finished on the example the Minister gave of an individual who was charged with three separate offences. The Minister said that, under the previous scheme, they would be in a position to be represented separately by three individual solicitors on three separate legal aid certs. Will that no longer be the case?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It will not be the case because there will be one accused and one fee.

Cathal Byrne (Fine Gael)
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Effectively, the individual accused person in that situation will have to pick the same solicitor to defend them on all three charges.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Yes, that is right. If it was up in the District Court on a Monday - a public order offence, an assault offence and a theft offence - the same solicitor would defend them on all three.

Cathal Byrne (Fine Gael)
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That could result in a situation where, because the three cases are different and the potential for the evidence or the individuals who witnessed the crime themselves to be different, that individual solicitor or barrister, as the case may be, would potentially have to attend on three separate occasions for each of the individual offences without there being any corresponding payment, given that there is just one flat fee.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I do not believe so. If there are three charges against an individual and they are in the one case, they will be heard at the same time. The judge will give a determination: for the public order offence, find them guilty; the assault, not guilty; and theft, guilty. That is the way it will be determined.

Cathal Byrne (Fine Gael)
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Throughout his contribution, the Minister referenced the Department's analysis of adjournments and so on. Has that been made available? Is it published?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is not, although people appear to have it. It has not been made publicly available. There was an issue in terms of the sensitivity of the data in it, but it has not been made available. We shared the data with the Law Society and the Bar Council.

Cathal Byrne (Fine Gael)
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Is there any intention to publish it, notwithstanding individual people being named?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will give consideration to that. A lot of the detail of it is in my opening statement.

Cathal Byrne (Fine Gael)
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Okay. To conclude, this has been a review of the District Court legal aid scheme. Are there any plans to change the Circuit Court or Central Criminal Court criminal legal aid scheme or is there a review ongoing?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Is the Senator asking me to?

Cathal Byrne (Fine Gael)
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I am asking if the Minister is doing that. Is it under way?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Not at present. My priority is the new civil legal aid Bill and to bring it in to transfer criminal legal aid over to the Legal Aid Board. That is my next priority. It may be worth looking at.

I thank the Cathaoirleach. I have to go to Seanad Éireann.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I appreciate that the Minister is under time pressure. We thank him and his officials for being here. I propose that we publish the Minister’s opening statement on the committee’s website. Is that agreed? Agreed.

We will suspend for five minutes before the next session.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The purpose of this part of the meeting is to continue our engagement on the topic of criminal legal aid. On behalf of the committee, I welcome the witnesses to the meeting. From the Bar of Ireland, we have Mr. Seán Guerin, chair, and Ms Aoife O'Leary, chair of the criminal state bar committee. From the Law Society of Ireland, we have Ms Rosemarie Loftus, president; Dr. Shane McCarthy, chair of the criminal law committee; and Ms Danica Kinane, member of the criminal law committee. I wish to put on the record an acknowledgement that we could have invited many individual practitioners but because of the short notice we received, we thought it appropriate to invite the representative organisations. I hope that is understood.

The format of the meeting will be to invite each organisation to make an opening statement of three minutes. We will then invite the members of the committee, in the order in which they have indicated to me, to put their questions and to have interactions. We will deal with the time but it will probably be five minutes each again.

Before I invite our guests to deliver their opening statements, I have to explain some limitations to parliamentary privilege and the practices of the Houses as regards references a witness may make to other persons in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected, pursuant to both the Constitution and statute, by absolute privilege. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if any statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative they comply with any such direction.

I sincerely thank both the Bar of Ireland and the Law Society of Ireland for their attendance. I now invite Ms O’Leary to make her opening statement on behalf of the Bar of Ireland.

Ms Aoife O'Leary:

I thank the Chair and members of the committee for the invitation. The council of the Bar of Ireland welcomes the opportunity to address members of the joint committee on justice regarding criminal legal aid. At the outset, let us be clear that the Bar of Ireland supports reform of the criminal justice system. We support measures that improve efficiency, reduce unnecessary delay and ensure that public resources are used effectively. We also recognise the importance of maintaining public confidence that the criminal justice system operates efficiently and delivers value for money. However, efficiency must be pursued with a clear understanding of how criminal proceedings operate in practice. The proposed flat-fee model for criminal legal aid cases in the District Court is premised on the view that a higher number of court appearances is, of itself, evidence of inefficiency. Our concern is that the analysis underpinning this proposal focuses exclusively on the number of adjournments involved in criminal legal aid cases, rather than the reasons such adjournments occur.

Criminal proceedings frequently require a series of essential procedural steps before a case can fairly conclude. These include directions from the Director of Public Prosecutions, disclosure of evidence, bail reviews, probation reports, psychiatric assessments and victim impact evidence. Many of these steps are required by law. Many also enable the court to pursue one of the central objectives of the criminal justice system, namely, promoting rehabilitation and reducing the risk of reoffending, where appropriate. None are within the control of defence practitioners.

Court appearances arising from these processes are not evidence of inefficiency. Rather, they are evidence of due process. Without first understanding the causes of delay, there is a risk that reform addresses its symptoms rather than its source. There is little evidence that the analysis relied on by the Department in developing these proposals made any distinction between the many different causes of repeat court appearances, including prosecutorial requirements, statutory obligations, court capacity and other procedural steps arising in the ordinary course of criminal proceedings.

If delays arise because DPP directions are awaited, because disclosure has not yet been furnished, because probation reports are outstanding, or because court lists are under pressure, then changing how defence practitioners are remunerated does not address the underlying cause.

The Bar of Ireland is also concerned about the longer term implications of the proposed model. Criminal legal aid is not simply an administrative scheme. It is one of the mechanisms through which the State fulfils its obligation to provide legal representation and ensure access to justice. A fixed-fee model may appear attractive in principle. However, criminal cases vary significantly in complexity, duration and procedural requirements. A payment structure that assumes a broadly uniform process risks failing to reflect the realities of criminal practice, particularly in serious cases, cases involving vulnerable individuals and cases where defendants are in custody.

This committee has previously heard compelling evidence of the challenges facing the civil legal aid system, including the impact that inadequate funding has had on practitioner participation and service capacity. These lessons should not be overlooked when considering reform of criminal legal aid. For that reason, we believe reform should be guided by evidence, informed by operational reality and directed towards the actual causes of delay within the criminal justice system. Indeed, only this month at the national economic dialogue, Government reaffirmed the importance of evidence-informed policymaking and the use of robust analysis in the design of public policy and public services. The Bar of Ireland strongly supports that approach. We simply ask that the same standard be applied here.

Our concern is that the current proposals do not appear to have been informed by a detailed examination of what is actually driving delay within the District Court system. Good policy begins with a clear understanding of how a system operates in practice. The existing legal aid regulations make careful provision both as to the number of legal aid certificates to be issued and as to the saving of costs due to unnecessary adjournments. It is the responsibility of the Department of justice to put in place and manage the systems necessary to achieve the savings and efficiencies that these existing regulations allow. That has not been done.

An effective criminal justice system must deliver efficiency but it must also deliver fairness. These objectives are not in conflict. The challenge is to ensure that reform strengthens both. Ultimately, reform of criminal legal aid should be grounded in evidence, focused on the actual drivers of delay and capable of preserving effective access to justice. The Bar of Ireland believes those objectives can and should be achieved together. I thank the committee. We look forward to answering members' questions.

Ms Rosemarie Loftus:

I thank the Cathaoirleach and Leas-Chathaoirleach for the opportunity for the Law Society of Ireland to address the deeply concerning decision by the Department of Justice, Home Affairs and Migration regarding criminal legal aid in the District Court. My apologies because my speech may go over the three minutes. I will beg the committee's indulgence. I am joined by my colleagues, Dr. Shane McCarthy, chair of the criminal law committee of the Law Society, and Danica Kinnane, member of the criminal law committee.

Criminal legal aid is a cornerstone of our justice system, serving as a vital mechanism to uphold the constitutional right to legal representation. Under the Criminal Justice (Legal Aid) Act 1962, the State is mandated to provide free legal representation to those with insufficient means to ensure they are on equal terms with the prosecution's resources. By facilitating the right of representation and ensuring a fair trial, the criminal legal aid scheme ensures that justice in Ireland remains a fundamental right for all rather than a privilege for those who can afford it. In essence, what the Department is now introducing is a fixed payment for an indeterminate amount of work. A one-size-fits-all approach is especially problematic for practitioners as it has no regard to the fact that there are certain categories of cases that are known to run for a far longer period than the five appearances that underpin the Department's model.

The Law Society is deeply disappointed with the Department’s decision to impose this model of criminal legal aid. The changes were developed by the Department without any consultation with the Law Society. The flat-fee approach is said to be grounded in the Department of justice document entitled Simplifying Criminal Legal Aid Payment in the District Courts. A version of this review was provided to the Law Society in October 2025. At that time, in spite of the fact that discussions were ongoing, the existence of the flat-fee proposal was not disclosed. However, it has become clear in recent days that the version of the document provided to the Law Society was a truncated version of a more extensive document. Before the document was provided by the Department to the Law Society, key elements were removed, including the very proposal to introduce a flat fee as well as details of projected cost savings. The complete report was never furnished to the Law Society by the Department.

The full version of the report only came into our possession ten days or so ago, and what is clear is that one of the central aims of the flat-fee proposal is to reduce expenditure. Another very significant feature of the Department's paper is that it recommended a flat fee of €582 based on six appearances, not €520 based on five. This means that the current fee represents a 10% cut based on the data on cases and costs outlined in the Department's own review document. The flat-fee approach also conflicts with the programme for Government commitment to restore FEMPI cuts in budget 2026.

The Law Society strongly opposes the flat-fee model for several reasons. It is based on a fundamental misunderstanding of how the District Court operates. The Minister and Department have made the assumption that delays are caused by solicitors seeking to maximise fees. In reality, the overwhelming majority of adjournments are sought by the State to allow time for disclosure, Director of Public Prosecutions directions, forensic reports and so on. The Department's desk-based review could never have captured the reasons for adjournments because they were not recorded.

It replicates a flawed model that has already failed in civil legal aid. This committee has previously heard evidence from the Legal Aid Board and Free Legal Advice Centres about the exodus of private practitioners from civil legal aid family cases due to the flat fees that have been imposed there. In a recent Law Society survey, 81% of respondents believe the same will occur in criminal practice if this flat fee is imposed proceeds.

The flat-fee approach disproportionately harms vulnerable defendants, including children. Those with complex needs or cases requiring multiple appearances will struggle to secure representation. The Law Society is calling for the postponement of the introduction of the new model until such time as the Department of justice has received and processed all of the additional data that it has requested from the Courts Service. The fees that are payable under the new model must constitute fair remuneration for the amount of work that is done by practitioners.

There are categories of cases where the length of proceedings is known to be considerably longer than the run-of-the-mill cases. A separate fee or an enhanced fee should apply to those categories which are, first, cases involving children. These cases take longer as the role of the court involves the court exercising a more supervisory, rehabilitative type role. These cases are by their nature longer in duration as the court will often monitor the progress of the child in getting back on the straight and narrow. Second are cases involving persons with mental health or mental capacity issues. These are cases where fitness to plead issues may arise and are typically of a longer duration. Third are cases involving people held on remand.

The legal aid model must recognise that charges relating to different offences involving different sets of facts and different evidence, different witnesses and so on must be treated as distinct cases, even if commenced on the same day in court. The Department's flat-fee approach does not take into account the fact that prosecution is responsible for the vast majority of adjournments. The Department must now introduce measures that will tackle prosecution-side delays, such as the production of disclosure, books of evidence, DPP directions, laboratory analysis reports, probation reports, restorative justice reports and so on.

Any new model of criminal legal aid should be subject to ongoing review.

We are calling for a post-implementation review to be conducted following the first six months of operation of any new model and a further review at 12 months. We are also calling on the Department to commit to publishing, every three months, a breakdown on a county-by-county basis of the number of solicitors undertaking criminal legal aid work in the District Court.

We are very concerned that the Minister and the Department appear intent on proceeding with a model of criminal legal aid that many practitioners consider unworkable. Proceeding on this basis risks causing lasting harm to the effectiveness of the criminal justice system. We believe that this moment and this measure will be looked upon as a pivot point where a crucial part of the criminal justice system was made worse rather than better. I thank the committee.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I thank Ms Loftus. There is a vote in the Dáil. I have been excused, so I am going to continue with the Seanad Members. I ask the Deputies to return as speedily as possible.

Lynn Ruane (Independent)
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I thank the witnesses. I will also have to leave because I have to second amendments in the Seanad. I am not going to take too much time. I would love to see if any clarifications were needed in terms of the record of what was said in the previous session. I think Ms O'Leary mentioned that there is not a clear understanding of the system. Obviously, I also do not have a clear understanding of the system, and the Minister has not worked in the system either. There are probably discrepancies and misunderstandings. I am not saying that any of them are intentional, but there is that lack of understanding.

What strikes me from having watched the conversation back and forth is the repeated mention of "efficiency". It is neoliberal language. I am concerned about the situation for the person on the other end. If all the delays are happening elsewhere and are not necessarily caused by defence lawyers, who are the defence solicitors representing? Am I to make the leap here and say this is not actually about the legal system, the judges or the State causing delays but people who need legal aid, who are the poorest and most oppressed people in the country? If this proposal is not about addressing all the efficiencies elsewhere, I am led to believe it is about the likes of the people who I worked with for years in addiction and community work. That is all I can see, if the only hole being plugged is the one they rely on, and not anywhere else.

There was a suggestion that ambitious solicitors will come in under this fee and be happy to do it. Being ambitious and talented, and understanding the complexities of the lives of the people someone is working with, are very different things. There is this idea that trainees are going to come in and be really happy with this proposal, but what will happen is that the institutional knowledge and understanding of a system, where people have worked for years and dedicated their lives to being criminal defence lawyers, will be lost. As the Minister said, it does not pay to be a criminal defence solicitor. If someone has chosen to work in this area, then, they have done so for a reason. It is because they can understand or at least have some sort of conception of the complexities involved.

I will give the remainder of my time to the witnesses to see if there is any response to what was said in the previous session about where any discrepancies lie. This is not to pit people against the Minister but because, as I said, not all of us have a clear understanding of the system and there may not be clarity on some of the points put forward in the last session.

Dr. Shane McCarthy:

I thank Senator Ruane for that question. From the Minister’s presentation, it was easy to believe that everything in the District Court is standard. There were references to cases being over in half an hour, etc. I have represented people in the District Court and I will give the Senator a few examples.

If you are representing a young person who has been given a chance by a judge, where the case will be adjourned for disclosure and for statements to be made, the judge may very well then, following an application, agree to a probation report being produced. The judge will then continue monitoring the case while that report is being done.

Lynn Ruane (Independent)
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I am one of those children.

Dr. Shane McCarthy:

While the report is being done, there will be a number of court appearances. The report will come in. The judge will review the progress. He might put the case back for six months or a year. We will then go back into the court, at which stage the judge will frequently order a second probation report to make sure that he is satisfied in terms of the public risk, etc. Now, that is not the type of case where you will be in and out in half an hour and have had a great day’s work. It is the type of case that will involve careful management for anything up to two years. To say this type of case can be done in four appearances is, to me, incredible.

I will give the Senator a couple of other examples. If there is a fitness-to-plead issue in a case, the maximum adjournment between one hearing and another is two weeks. By the time you get medical reports and everything like that, and with the case being adjourned every two weeks, it will not be a quick process. I spoke to a solicitor, who is actually the vice chair of my committee, who recently had one of these cases. She appeared 49 times for that person while the medical issues were being resolved.

Some have said the €520 fee is generous, but it is not generous for complex cases. It is generous for the example given by the Minister, which I thought was somewhat glibly given, about a person having an argument on a Saturday night and getting the probation Act on a Monday morning, and suddenly you are €520 richer. I do not agree. That is not my experience in the District Court when you are dealing with children, people who have addictions and people who have fitness-to-plead issues. To say that all of those issues can be done in five appearances is an incredibly facile interpretation.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Would anyone else like to come in?

Mr. Seán Guerin:

If time permits, I want to address one of the core issues in the discussion, which relates to the practice of multiple certificates being issued. The Department’s analysis focuses on the divergences statistically between the number of certificates and the number of cases, as they are described. The Minister said that if there was a report available to the committee explaining that, it would be asking him to resign. Of course, I express no view on whethr he should remain in the office in which he is at present, but I want to draw the committee’s attention to the fact that, better than a report, there is a decision of the High Court. The Minister actually referred to this himself but he did not tell the committee what was in it. Ms Justice Phelan of the High Court said in paragraph 60 of her judgment that if the practice of the Department of justice in processing payments was properly aligned with the requirements of the statutory scheme, then whether legal aid was assigned to different solicitors within the same firm would make no difference. She concluded on this issue by saying that any burden on the Exchequer arising from multiple certificates issuing in the names of separate solicitors in the same firm results from the practice of the Department of justice in not enforcing Regulation 7(4) in line with statutory intention.

Regulation 7(4) was enacted in 1965. It has been there for 61 years. The real question the Department has to explain the answer to is why, 61 years later, it is incapable of putting in place a system that allows that statutory scheme to operate properly. The High Court has said that if it did that, then it would not matter how many certificates were issued and to what solicitors. This is really the explanation for the issue of multiple certificates. The Department has not put in place a system to operate a 61-year-old statutory scheme.

Lynn Ruane (Independent)
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There is a vote in the Seanad.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Oh, mother of God. We will have to suspend at this stage. I hope the Deputies will not be too long. I ask people to hang tight and we will suspend for a couple of moments.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I assure our guests that we do not get paid by the suspension. We hope we will not have any more.

Catherine Callaghan (Carlow-Kilkenny, Fine Gael)
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I thank the witnesses for being here and for their valuable, interesting and informative opening statements and discussion. I had a number of questions that I wanted to ask the Minister when he was here but, unfortunately, I had to attend a vote and missed him. I will try to reframe the questions to get the witnesses’ perspective on them.

While I am not legally trained, it is clear that no reasonable or rational person in the world would argue with anyone’s desire to try to reform and change a system that is being abused. We all agree on that. That was the Minister’s strong contention when he presenting his side of the argument. He listed one particular case – it is all in his opening statement – where the system was abused. As I said, I am not a legally trained person but it is not correct that an exception should make the rule. Are the reforms the Minister is proposing a blunt instrument to effect the reform and change he desires? Through consultation, or a lack of consultation, with both the Bar of Ireland and the Law Society of Ireland, have all possible avenues been properly and fully explored to achieve the reforms the Minister is seeking in seeking to close the gaps and address misuse and abuse of the system? If that is not the case, could the witnesses offer some alternatives? That would be helpful.

Second, the Minister said that early in his career, he was advised not to get into criminal law because “crime does not pay”. I thought that was an interesting statement, considering it reflected the views that a lot of solicitors and legal representatives have expressed to me regarding free legal aid. Most practitioners are not in it for the money. Rather, they see it as a vocation or are in it for other motivations. If they were interested in making money, they might have pursued a different avenue, such as civil negligence or personal injury, where there is more money.

Looking at this issue through the lens of the District Court in Carlow, I observe the types of cases that are receiving free legal aid. They might be related to drugs or alcohol. Often, there are multiple charges. If we compare those cases to the cases not in receipt of free legal aid, they tend to relate to excessive speeding - sometimes double the speed limit - or drink-driving charges. I wanted to ask the Minister whether he thought that he is comparing like with like in this regard and whether the €520 fee is a true reflection of the variance of cases that can present in free legal aid. From listening to the witnesses’ statements, he is not necessarily comparing with like with like.

Legal representatives have spoken to me regarding these proposed reforms and the one case, one fee approach. If they cease to do this good work, who then takes it over? Is this an impediment to everyone getting the correct access to the legal representation they need to ensure that justice is served fully and properly in Ireland?

Ms Rosemarie Loftus:

Abuses in the system have to be called out. We are quite happy for them to be called out, but two cases were recited out of a total of 339,000. Equally, we do not have the data the Minister collated. We do not have the Department’s information, so how are we to say whether it is correct? As far as we are concerned, it is anecdotal.

The Deputy asked about who will take over the legal aid practice. The Minister mentioned that it will be brought into the criminal legal aid service. However, in reality, on the ground, if there are practitioners who have already left the civil legal aid system, it is potentially like that they will equally do so in this sphere. Our survey has affirmed that 81% feel they would exit it.

Let us take Ballina, County Mayo as an example. There are 22 practitioners in the town.

Of those, only one practices in criminal legal aid, and in Mayo itself, there are six. They are all over 40 years of age. What is going to happen? They may very well choose to exit and never come back to it. The Deputy’s guess is as good as mine. What is going to happen on the ground? Will there be legal deserts, as there are with GPs in rural Ireland?

It is not just about the cohort in Dublin and what happens within the criminal legal aid practice in Dublin, where obviously there is a lot of crime. The reality is it is about rural practice all over the country and access to justice and fair procedures to all accused, as well as support of victims who deserve to have their cases dealt with in an appropriate manner.

Gary Gannon (Dublin Central, Social Democrats)
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I thank the witnesses for coming in and making their presentations. Did the groups read the Minister's statement? I do not mean the one he read out, but the nine-page document we received. Are they aware of that statement? It does not paint the profession in a particularly great light. I will quote a couple of comments that he did not actually say in this room.

The model was subject to considerable abuse, with many solicitors maximising payments through practices that were unethical. These abuses will no longer be possible under the new system that I signed into law.

Do the witnesses think it is fair of the Minister to refer to many abuses, but only actually highlight three that we can think of? What did they think of that statement when they read it?

Dr. Shane McCarthy:

It was an horrendously unfair statement. The Minister made reference in his written statement to legal practitioners taking payments in addition to a legal aid certificate. I found that to be a bizarre allegation. If it is one he genuinely believes, it should have resulted in a complaint to the regulatory body. The fact is that it was brought up for the first time in this document. I am not here to apologise for bad conduct but I think it appalling that if the Minister was aware of circumstances like that, he did nothing about them except to use them as a support for an argument, rather than doing something to protect the members of the public. That is if such a thing happened at all.

Gary Gannon (Dublin Central, Social Democrats)
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A question I did not have time to ask him, as I was running to try to get in, was whether he actually make any complaint to the Legal Services Regulatory Authority Ireland in relation to any of the abuses he said he discovered. I ask the witnesses to tell us about their engagement with the Minister. The Minister is adamant, both in his written submissions and in what he said here, that he has had extensive engagement with the Bar Council and the Law Society.

Mr. Seán Guerin:

On behalf of the Bar Council, I can certainly say that although we have met him, the engagement has not been detailed on these issues. First, the Minister has said he has shared the data with us and I regret to have to say that is just not true. The Minister has not shared the data on which the analysis is based. What we received back in October was a document presenting the Department's position on the data, so, a selection of its analysis of the data that favoured its approach. We have asked for the data and we have been refused it. We do not have the data and we do not know what it is based on. This comes back to the point the Deputy made just a moment ago, and indeed the point Deputy Callaghan made, about what other reform is required. There is no reform required on the issues of multiple certificates or adjournments that is not already provided for in the legal aid regulations. It is already there. What needs to happen is for the existing provisions to be applied and enforced by the Department. That is true of adjournments where an adjournment granted for the convenience of a defence solicitor will not be allowed payment and, in particular, of multiple certificates.

To take the example of the 65 certificates granted in relation to a brothel-keeping case the Minister referred to, the legal aid regulations specifically provided that payment shall only be made for one certificate unless the court has otherwise ordered. However, the Department does not enforce that system. The Department either makes or does not make payment in circumstances where the legal aid regulations, already in place and there for 61 years, already address that situation. It is not an issue of unethical conduct; it is an issue of public administration.

Gary Gannon (Dublin Central, Social Democrats)
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Do the witnesses think the Minister is absolving his own Department of responsibility for what it is culpable and instead seeking to reform by solely placing responsibility on the defence?

Ms Rosemarie Loftus:

When it comes to the issue of delay, no data has been provided to us to support the contention that the delay is on the part of the solicitors. That data is available. We have asked for it but we have not been given it. When the Deputy asked equally about engagement, there has been engagement but not in the strict sense of giving us what we ought to have been provided so that we could at the very least analyse it.

Gary Gannon (Dublin Central, Social Democrats)
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It is a strange place to be where we had one witness previously tell us that something happened, and other witnesses telling us it did not. I am not sure what we do in this situation. Maybe we should seek something in writing.

Did the witnesses read the document entitled Review and Reform Proposed Criminal Legal Aid Fee Structure for the District Court?

Ms Rosemarie Loftus:

That is the document that we got ten days ago, approximately. It was not provided to us by the Department; it was out there.

Gary Gannon (Dublin Central, Social Democrats)
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I read about it in the newspaper approximately two weeks ago.

Ms Rosemarie Loftus:

We wrote to the Minister and sent him a copy of it in order for him to verify the status of it and that he was standing over its contents.

Mr. Seán Guerin:

There are a couple of other documents. The Government's economic and evaluation service looked at the criminal legal aid scheme in 2018 and concluded at that stage that Ireland has a robust criminal legal aid system, which in expenditure terms, is broadly similar or slightly cheaper compared to northern European peers. We have a good value system.

Another analysis published by the same service as recently as March 2026 makes clear that analysis does not understand the reasons for the increase in the legal aid budget. The Government's own economic and evaluation service has not been able to explain the increase in the legal aid budget. There are reasons it might have increased. For example, prosecutions for sexual offences have increased significantly. That is only right but they are more complicated and difficult cases and they take time.

To take another example, earlier this month, on 9 June in Letterkenny, 330 cases were adjourned in a single day because a Supreme Court decision was awaited in relation to the custody of a sample taken in a drink-driving case. The High Court had found the existing regime inadequate. Prosecutions would have failed on the application of the High Court scheme. The State wanted all of the cases to await the decision of the Supreme Court and I have no doubt that similar numbers of adjournments were replicated in district courts all across the country. That is being presented to this committee and publicly as just a whole series of adjournments that are being made because of inefficiency on the part of legal practitioners.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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That is a point well made. I am going to have to let others in, and we might have a second round.

Paula Butterly (Louth, Fine Gael)
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I thank the witnesses very much for coming in at short notice. To go back to the lack of engagement, do the witnesses know whether the research done was either a paper or a desktop exercise and whether the officials ever visited the District Court? Do they know, in terms of the information-sharing that went on during their consultations or discussions with officials, exactly how they carried out this research?

I am concerned that perhaps the Minister and his officials are trying to reform the court system by punishing the legal profession and using practitioners as soft and easy targets. I say that with huge regret. What concerns me is that 339,000 cases were quoted by the Minister here today. Deputy Gannon also alluded to the fact that his opening statement was pretty damning of the profession, yet only a few handfuls of cases were demonstrated, and without any evidence to see how the issues came about and the actual depth of what was going on behind them. If I take those 200-odd cases, it turns out to be a 0.000008%. As Deputy Callaghan said, that is not an exception. That is exceptional and it should not be the rule. I would like the witnesses' thoughts on that.

Dr. Shane McCarthy:

I will take the first part of the question. The Deputy asked how I understand the data was collected. It was a desktop exercise. We had offered on a number of occasions to allow officials of the Department and the Minister's staff to attend different courts so they could see and have a real feel of what happens in court.

They informed us that they had subsequently attended a District Court. I do not know where, as they did not tell us. They reported on what they saw in the court that day. It was, again, pure anecdote in terms of the research. I would have thought it was incredibly deficient.

On engagement generally, it has been incredibly poor. A very substantive reply to the proposal was put to the Department by the Law Society. Despite the fact that I was frequently being contacted by people saying they were in negotiations with the Law Society and so forth, for a period of approximately four to five weeks, the only response received to a very substantive submission was an out-of-office reply. It took five weeks. At no stage was there proper engagement with submissions. At each point, this has been presented as a fait accompli, that we should take it and that is the extent of the negotiation. Legitimate concerns are being raised and they are not being engaged with. I pointed out examples where cases would clearly fall outside the very narrow remit of this scheme. All we are being told, even though there has been plenty of time to engage with us, is this is coming in anyway. On the Thursday before last, it was arranged that a further meeting would take place to discuss these matters. We were asked to leave the following day - Friday, 19 June - or the Monday to discuss this further, but despite repeated attempts to have those meetings to make this scheme better, they never took place. All we received was word that we would get proposals tomorrow and tomorrow and tomorrow. That went on for eight or nine days and it was utterly dismissive of legitimate concerns. Nobody on this side of the table is opposed to efficiency or reform. We have always indicated to the Department a willingness to engage in that reform, but it is being presented as if that is it and if we do not want to do it, the Department will get ambitious young solicitors who will step in instead of us. That, as an attitude, is appalling.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Ms O'Leary wanted to expand briefly.

Ms Aoife O'Leary:

To revert on Deputy Butterly's question, we do not know exactly how the analysis was conducted. We asked for the underlying data but it was not provided to us. We know that there was no record of why a case was adjourned or who had applied for an adjournment. That was confirmed to us.

There seems to be a complete absence of understanding of how the District Court operates in practice. That was repeated earlier when the Minister was addressing the committee. There was a suggestion that cases could simply be adjourned for three months to allow whatever the reason for the adjournment was to take place. The Criminal Procedure Act requires that people who are in custody are presented to the court every two or four weeks. There is no facility to simply adjourn their case for three months while whatever procedural step that has to take place happens. Individuals who are before the court charged with serious offences who are being held in custody are presented before the court and the Garda will seek further time to prepare a file for the Director of Public Prosecutions.

There was a suggestion earlier to the effect that this new system would mean District Court judges would strike cases out if the prosecution was not ready. Is it actually being suggested that where gardaí are coming into court and individuals have been refused bail on the basis they are alleged to have committed serious offences and may commit further serious offences, we should now simply have the prosecution struck out? The individual would be released back into the community, leaving the Garda to charge them at a later date when its members are telling the court that they need time to prepare a file and gather evidence and where the DPP may have legitimate reasons to need further time to issue its directions. There is simply not an understanding of how the system operates and how adjournments are required for procedural purposes.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Deputy Ward is not a member of the committee, but with members' agreement, we will give him five minutes.

Barry Ward (Dún Laoghaire, Fine Gael)
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Thanks very much, Chair. I appreciate your accommodating me. I am a criminal aid lawyer and I have received payments under the scheme and still do, I hope.

I want to address a couple of issues. I endorse what Ms O'Leary just said on the potential for adjournments and what she said in her opening statement about the Minister equating the number of adjournments with inefficiency. I just do not see the logic behind that. It demonstrates to me a severe lack of understanding of how the courts work.

I am wondering if the witnesses could say whether they think that a smart solicitor who is going into court, is trying to maximise the profitability of his or her time and who knows they are only going to be paid for a certain number of appearances will reduce the appearances and stretch out the length of time for the disposal of that case before the District Court and, therefore, delay justice unnecessarily. Could that be an unintended consequence of what is being proposed?

Ms Danica Kinane:

Will the Deputy please clarify that?

Barry Ward (Dún Laoghaire, Fine Gael)
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Yes. If you know you are only going to be paid for three or four appearances, you will limit the work to three or four appearances. If that takes six months or two months, you would rather make it longer so you can be sure, for example, that the book of evidence is going to be ready and the disclosure will be made.

Ms Danica Kinane:

I simply do not see that that is within our control. It is the judge who determines the length of the adjournments.

Barry Ward (Dún Laoghaire, Fine Gael)
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Is that not exactly the problem?

Ms Danica Kinane:

Yes.

Barry Ward (Dún Laoghaire, Fine Gael)
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It comes back to the point that was being made. The number of adjournments is not within the control of the defence. It is not something that equals efficiencies but is part of exactly the process being described there. It is all the protections that are built into our system.

Ms Danica Kinane:

Yes, and it can be seen in drugs cases when there is a delay in receiving certificates of analysis. The judge will adjourn those cases for longer but they will bring the clients back in to review cases, review bail and review progress. It is rare for applications to be made for those cases to be struck out but, again, the effect is on victims, and perhaps a client has spent a long period in custody awaiting that.

Barry Ward (Dún Laoghaire, Fine Gael)
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Is there a follow-up there from the point of view that the way this proposal is designed will make certain types of case very unattractive for lawyers to take? Might we end up with a situation where solicitors would seek to cherry-pick clients and avoid chaotic ones, like drug addicts, who might be less likely to turn up?

Ms Danica Kinane:

For me, it would not be cherry-picking, but capacity. I simply would not have the capacity to manage the full volume of cases and to spend the time with the clients who need it.

Barry Ward (Dún Laoghaire, Fine Gael)
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Therefore, a consequence of this might be that the more stable clients will get a better service or will be accommodated by the system and those who are chaotic - mainly people who are likely to take a bench warrant or who are unlikely to turn up for court or whatever - might fall between the cracks.

Ms Danica Kinane:

Yes. I believe it was mentioned earlier that it was a half an hour in court, but it is not. It is hours in the office, late nights and calls from Garda stations at 2 a.m. It is not half an hour in court and it is missing the point entirely to say it is.

Barry Ward (Dún Laoghaire, Fine Gael)
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I wish to touch on a point Mr. Guerin made about the current regulations and how there are practices that exist that are within the regulations and might be undesirable. I think he has acknowledged that, as in any profession, there are people who seek to act outside the rules but that they should be dealt with accordingly under the professional practice regulations. However, regarding the criticism that the Minister has made of the way some lawyers behave, I have never experienced a situation where solicitors have deliberately adjourned things over a period of time. It is a massively inefficient practice and I have never seen it done. It has been a while since I practised in the District Court but it was not my experience. Nevertheless, if there are practices the Minister disapproves of, surely those can be addressed by an amendment to the regulations.

Mr. Seán Guerin:

On the issue of adjournments and multiple legal aid certificates, there is no need to amend the regulations. The regulations are already there. They just-----

Barry Ward (Dún Laoghaire, Fine Gael)
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Enforcement of the regulations.

Mr. Seán Guerin:

They just need to be enforced and applied, and there need to be systems put in place to do that. It was surprising to see in the recently published proposal from the Department an insistence on documents hand-signed with what was described as a wet signature. Old-fashioned pen and ink are required on the legal aid forms for a claim to be made. The idea that, in the digital age we live in, there would still be an insistence on the paper, pen and ink that might have been the only way of making a claim in 1965 when the regulations-----

Barry Ward (Dún Laoghaire, Fine Gael)
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Ground rents are still on the form, are they not?

Mr. Seán Guerin:

Sorry?

Barry Ward (Dún Laoghaire, Fine Gael)
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You have to admit whether you owe any ground rents on the legal aid statement of means.

Mr. Seán Guerin:

That is the statement of means. I am talking about the claim forms to be submitted by solicitors. They have to have a wet signature on them. I am the representative of the Bar Council on the board of the Courts Service.

The Courts Service has a massive digitalisation programme under way and the idea that these new regulations, which are designed to improve efficiency and are presented as a reform for that purpose, are insistent on that type of wet ink, paper-based claim forms that were the only way of making a claim in 1965 is an extraordinary state of affairs.

To come back to the point that has been made, it is said perhaps glibly that crime does not pay. The real issue here is that the provision of an essential public service will not pay. The State looked at the possibility of providing public defence through a public defender office where people employed by the State would act on behalf of accused persons. It was established at that time that the existing system is more equitable, more economic and more efficient than a public defender system but it has to not just be economic for the State; it has to be economic for those who provide the service. If it is not, what will happen is exactly what has happened to the civil legal aid scheme, which is that people will simply refuse to provide the service. A real concern there is that the fees payable under that scheme are not index-linked. They have not been adjusted. They are the same fees that were applied in 2012. If the €520 had been introduced in 2012 for criminal legal aid, it would be worth about €406 today. That is what is going to happen in the criminal legal aid system. It will be exactly what has happened in the civil legal aid system. Fixed-fee payments are implemented, not index-linked and their value is gradually eroded overtime by inflation. As a result, people will simply leave the service and an important public service will not be sufficiently resourced.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Before I open for a second round, I will ask a few questions. I was reading through the Minister's written opening statement that was provided to us this morning. I had to double-check that it was a legitimate document. My overriding question to the organisations and their members is what did they do or say to the Minister or his Department? I have never seen a situation where a Minister would be in dispute with a group of workers, would use language as inflammatory as "unethical" and make other charges to be essentially portrayed on an entire sector, without a substantial amount of evidence to back it up. I ask that question rhetorically. The witnesses can come to that.

There are a number of issues the Minister has cited as the rationale, such as the number of adjournments and double jobbing, if I can use that term. Is there an official term for duplicate legal aid certificates? The third point, which the Minister did not mention and I do not think it was touched on earlier, is what he calls open advertising to maximise profits under the criminal legal aid scheme. He said that solicitors are openly advertising how to maximise profits. From what I see, the evidence he provides for that assertion is that it has been reported in the media that advice has been provided to solicitors in a presentation, entitled a crash course on legal aid applications in the District Court, informing solicitors how they can maximise legal aid by assigning each prosecution in a difference solicitor's name from the same firm. A number of members have sought to get the deliberative data in terms of how each of those charges has been made. Have either of the societies got information to the contrary that would point to the number of adjournments that are not being directed from defence solicitors, in other words, that come either from the State or at the instruction of the court in terms of the number of instances where multiple legal aid certificates would be applied to an individual? Do they have information as to whether or not it is open practice for solicitors to advertise how to maximise profits in the manner that has been outlined? I do not know who wants to go first.

Ms Rosemarie Loftus:

On the adjournments, the realities are that the practitioners on the ground are the ones making the applications where they have to, and that in turn is adjudicated by a judge and is not given without due cause. In fact, under statutory instrument 33 of 1978, regulation 3(2)(b), it effectively states that a solicitor will not be paid in the event of him or her looking for an adjournment for his or her own convenience. That is a reality. Solicitors are not making applications for an adjournment because they are not going to get paid if they are doing it for their own convenience. It is the corollary of that.

When it comes to the suggestion that there is advertisement, we have no knowledge other than what was in the Minister's review document. That might be once, as an incident, and maybe there were slides. We have no knowledge; I have never seen them. The realities are that we have not got them. Whether that was inappropriate or otherwise, the realities are that it was only on one occasion. Where is the data to support that this has happened as a flagrant breach of ethical obligations of any solicitor or professional?

Mr. Seán Guerin:

The data is just not available on the number of adjournments. It should be available. It is obviously within the means of the Department officials to get their hands on the data, publish it and publish their analysis of it. We would be happy to engage in that. We are confident, for the reasons Ms O'Leary has already referred to and that are set out in the written submission we made to the Department, that the vast majority of adjournments will be explained by the necessities of ensuring the fair disposal of court proceedings and by the statutory obligations that exist to adjourn for specific purposes. On the question of multiple certificates being granted for no reason, as I already indicated, that is provided for in the regulations and, as the High Court has stated, any burden on the Exchequer arising from that is as a result of the Department's failure to put in place a proper system.

As far as advertising profits or maximising profits is concerned, I draw the Chair's attention to the concluding sentence of the Minister's published opening statement, which states, "While it is open to anyone to advise their colleagues on how to maximise their earnings, it is for us as legislators to ensure that the systems we have in place do not facilitate the maximisation of income as an end in itself." That is precisely the point we make. It is not just the responsibility of legislators because in truth, it is the responsibility of the administrators. It is the responsibility of the Department to ensure that the systems are in place to prevent excessive maximisation of income and the High Court has already expressed very plainly the view that is not what the Department has done. I have no hesitation in saying in this forum, as we said directly to the Department officials when we met them, that if they have evidence of improper behaviour by any legal professional, they should report it to the Legal Services Regulatory Authority. That is the clear and unquestioned position of the Bar Council. If the Department has evidence of misconduct by any legal professional, it should report it to the proper authority, provide the evidence to support it and not use isolated examples, which only exist because of the absence of appropriate structures in the Department, as a means to blacken the reputation of people who provide an important public service.

Paula Butterly (Louth, Fine Gael)
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In light of everything we have heard today both from the Minister and the witnesses, we understand that it has been a paper exercise. There have been no, or maybe one, visits to a District Court. This reform is to come in tomorrow on 1 July, notwithstanding the fact that the District Court continues right through the summer. It does not actually go into recess. Perhaps that date was given because somebody not understanding how the District Court actually works thought that maybe everybody was going off on their holibobs on 1 July, or very close to the 1 July, and were to come back in October. In light of the lack of evidence, lack of analysis and the fact there is no clear understanding of the District Court from the officials, as a committee, we should write immediately to the Minister to ask that it be postponed tomorrow, that all the evidence provided to the committee is reflected upon and this is delayed until such a time as all the facts are before the committee, be it October or November, and there is a clear understanding.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I will take that proposal at the end of the meeting.

Dr. Shane McCarthy:

In response to the counsel of Deputy Butterly, such a proposal is not coming in tomorrow - none of us have seen the regulations. If we are being asked to take on instructions today it would be for a scheme that we would not know how it is operating. We do not even know what a form will look like tomorrow. We do not know what rules are applicable. In my view, it is bizarre that one would be expected to take instructions in such a fashion. If there was a proposal to adjourn the implementation of it, however, I can guarantee Deputy Butterly that the co-operation from the Law Society to make this scheme as efficient and effective as possible will be forthcoming. It will be done on a genuine basis because what is proposed to come in tomorrow is simply unworkable.

Paula Butterly (Louth, Fine Gael)
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I see no other option. There is no justice here for anyone, in particular any victims or vulnerable people.

Ms Rosemarie Loftus:

I might add, that is what we have been urging; that it is postponed to allow the pause so that we could actively and meaningfully engage and that the data would be collated so that we could look at the whole structure. We have been asking for reform. We are quite happy to look at any reform that is workable, but right now, as far as we are concerned, what has been implemented and signed is effectively unworkable.

Catherine Callaghan (Carlow-Kilkenny, Fine Gael)
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It is hard to follow what Deputy Butterly said, but I do support her in that regard. The Minister's contention is that reform was needed. I know I am repeating something on which we are all agreed. He also said that the system as it currently exists is inefficient. He pointed to the legal professions as the cause of the inefficiency. As we heard in evidence today, a lot of the adjournments have been requested by the State. The witnesses have outlined that the system as it currently exists already has all of the tools that are required to correct the gaps – the abuse of the system that the Minister is trying to fix with the new reforms. Could the witnesses help me to understand why that is not happening? Where is the block? It was stated by Ms O'Leary that: "It is the responsibility of the Department of justice to put in place and manage the systems necessary to achieve the savings and efficiencies that these existing regulations allow." Why has it not been done?

Mr. Seán Guerin:

That question should, respectfully, be addressed to the Minister and not to us.

Catherine Callaghan (Carlow-Kilkenny, Fine Gael)
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If I have an opportunity to address it to him, I will. It is unfathomable. I do not understand why. Does Mr. Guerin understand why?

Mr. Seán Guerin:

No.

Ms Rosemarie Loftus:

No.

Ms Aoife O'Leary:

It is not as if he did not know.

Ms Rosemarie Loftus:

There are so many reasons - the data, for example, on the reasons for the adjournments, the minutes of the registrar and the court file. The judge records why it happens because it may be another judge on the next occasion. There is a memo to indicate why the matter was adjourned. The data is there but it has not been collated. They are inefficiencies within the system but we are not the persons with the mandate or the ability to control the collection of that data. We are quite happy to assist. Our practitioners on the ground can keep a record on a day-to-day basis of why an application was made for an adjournment or why a case was put back for a certain length of time. We are quite happy to assist.

Dr. Shane McCarthy:

If the implementation of this was postponed and that study was to be undertaken the information is there, it can be collected and even if it was done on a sample basis it would certainly assist and show that what we are saying is what is happening on the ground. The Department has said that the data we are now talking about was not taken into account. It did not look at it. It is key, central and core to the reforms that have been suggested. It has been said there are too many adjournments and then it was said that they never looked at why the adjournments were being undertaken. It is bizarre.

Catherine Callaghan (Carlow-Kilkenny, Fine Gael)
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It is. I thank the witnesses.

Gary Gannon (Dublin Central, Social Democrats)
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I will be brief. I support Deputy Butterly's call that we write to the Minister on all of those things but I do not have much confidence that it is going to achieve anything given that it is happening tomorrow. I totally appreciate that the witnesses are not organising, encouraging or advocating for any strike action, but what does tomorrow and the next couple of days look like? What does the week after that look like in terms of the judicial system and those we ask to provide representation?

Ms Rosemarie Loftus:

Individuals will decide for themselves whether they feel that the structure the Department is now imposing upon them is workable for them. They may choose that it is not for them. We understand there is a mood afoot in Cork that, as of yesterday evening, we got notice that they had already decided they intend to resign from the legal aid panels. Others will take different views. Others may choose not to do anything. We do not know. All we can honestly say is that it is not workable. In a survey, 81% of our profession who are practising in the area said that they would not continue to practise.

Gary Gannon (Dublin Central, Social Democrats)
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I listened to "Morning Ireland" this morning and a solicitor talked about the fact that he was removing himself from the legal aid panel and so were the majority of the solicitors in Cork, if not all of them. What will it look like next Tuesday in Cork?

Dr. Shane McCarthy:

The short answer to that is chaos. If we take a longer term view, if it is accepted that the scheme is unworkable and there is a mass exodus of solicitors from the panel, as is anticipated, and as has happened in the civil legal aid schemes, what it will look like then is incredibly frightening. There are some parts of the country where you could be waiting 60 weeks or more for a civil legal aid appointment – more than a year. I do not understand how anybody could consider that vista in terms of criminal legal aid. I do not know whether people would be expected to wait in custody or to hang around waiting for trials until they can get representation but whatever way you look at it, it is utterly chaotic and it in no way protects the public interest or provides any public protection.

Ms Rosemarie Loftus:

If I can just give an example, in Mayo yesterday 200 people were called to potentially be empanelled on a jury and the judge had to tell them to go home. That is State money going down the drain and in reality that is only one example, as of yesterday. I am sure there are numerous examples around the country. That was yesterday, so there will be upheaval.

Tom Brabazon (Dublin Bay North, Fianna Fail)
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Deputy Gannon has asked what I was going to ask.

Barry Ward (Dún Laoghaire, Fine Gael)
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I want to make reference to some legal aid figures for individual practitioners that were read out earlier. They are frequently cited in the media. The joke has been that crime does not pay but the reality is that crime is the least profitable area of law in real terms. Somebody described it to me as the Ryanair of law. When those figures are published they do not mention that they include VAT, for example, or that solicitors run offices, employ people and pay rent, etc. from those fees.

How does it affect the morale of the professions if there is an allegation that there is inefficiency within the system but only one group of actors within the system are being targeted for blame and for a penalty? How does that affect how practitioners feel within that system?

Ms Rosemarie Loftus:

They feel frustration, disappointment and dismay. Those words have been expressed, probably even more harshly. We met with our criminal legal aid practitioners yesterday. There were 336 practitioners on a Zoom call. The actual sentiments were palpable. Some were deeply worried about their viability because they are solely practising in the criminal legal aid area and do not know whether they will be able to continue to practice. There is absolute frustration. We want to engage. We have asked to engage. At 5.50 p.m. yesterday we were basically given a letter to say it was a fait accompli.

That is not engagement.

Mr. Seán Guerin:

There is a deep sense of frustration. It goes back to the period after the financial crisis. The Minister spoke today about the restoration of the last of the FEMPI pay cuts. In July 2018, the Department of justice and the Office of the Director of Public Prosecutions agreed in writing that the Bar had co-operated with efficiencies and reforms equivalent to those provided by other sectors in return for the unwinding of the FEMPI-era pay cuts. We had to wait a further eight years for that process to be completed. It would never have happened had individual barristers not withdrawn their services in October 2023 and July 2024. There is a deep sense of frustration. We are providing a public service and co-operating with significant improvements in the justice system, for example, the implementation of the victims directive, and all sorts of other areas of reform. However, the value that reform provides to the public interest is not being recognised.

This is consistent with what we have seen across other areas. For example, it was recently decided to impose cost caps on environmental judicial reviews at between 25% and 40% of the real cost of taking those proceedings and to impose those caps on individual applicants who have not only taken judicial review proceedings, but who have succeeded. In the same way, we saw lawyers taken out of the personal injuries system. As 95% of applicants to that process actually have a solicitor but that representation is not funded by the wrongdoer, the injuries board recently recommended that the Government revisit the question of legal advice in these circumstances.

Lawyers provide a very valuable service. It is essential for the protection of core citizens' rights. It is regrettable that the service provided to individual citizens does not seem to be valued at present. It has not been valued for some years.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Before we finish, I thank the members for all of their contributions and I thank both groups for coming here at short notice. I know that dealing with this issue has taken up the entire day of many individual practitioners and probably much longer. I have a number of concerns about the proposals the Minister has signed off on. One of the concerns is that, while we are told the statutory instrument was signed yesterday, we do not even know the number of that instrument at this point and cannot see what is in it. That is not a good place to be.

Based on what I have heard, I have concerns. I have spoken to people I trust who understand the District Court system better than anybody on this side, with the exception of those who have worked in the area, and they tell me that some of the most vulnerable people who come before our courts are the people who will suffer most as a result of this measure.

I also have a concern for the public purse. I do not understand the logic of a public payment at a flat rate for a diverse range of activities. The Department has got some competing objectives mixed up. If you were to tell Dublin taxi drivers that there was to be a flat-rate payment, anybody who needed to get to O'Connell Street from here would get a taxi easily but those who were going to Finglas or further would not. The net result might be the Minister for Transport saying that there had been more taxi journeys than ever before but the question is whether we have an effective service. In this situation, we will end up with this Minister or one of his successors saying at some point that the complexity of cases needs to be reflected because certain kinds of cases are invariably leading to a number of adjournments. Anybody who has fewer than average cases is not going to accept a pay cut. They have built their business on the basis of the current model. There is the potential for a big hit to the public purse. Instead of improving efficiencies, we will just end up with a system that is less efficient and that costs more. Some of the best legal practitioners may also be lost to the criminal aid scheme in the interim.

Those are just my thoughts. I think there is agreement in principle to accept Deputy Butterly's proposal to issue a letter. I ask members to stay for a private session so that we can agree on a wording for that letter. If anybody would like to make some brief closing remarks, they are welcome to do so now.

Dr. Shane McCarthy:

I thank the Cathaoirleach for the manner in which we were treated today. It was a fabulous opportunity to ventilate areas of huge concern. The provision of this forum was hugely appreciated.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I thank Dr. McCarthy. Is it agreed that we will publish the opening statements on our website? Agreed.