Barry Ward (Fine Gael)
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I welcome the Minister of State, Deputy Ossian Smyth, my colleague, neighbour and friend from Dún Laoghaire-Rathdown County Council, who is here to deal with this matter. I am grateful to him for coming in because this is an important issue, namely the unwinding of cuts to criminal legal aid fees. It is not a secret that I am a criminal barrister and I still work in that sphere and receive criminal legal aid payments but I am not issuing this request out of self-interest. There is a sustained campaign by criminal barristers to deal with this issue because it is a serious issue for those practising criminal law.

There is a misconception out there that barristers all do very well and that they are all wealthy. It is a popular thing to say and certain media outlets love to refer to the Four Goldmines but that does not apply to criminal barristers. Crime does not pay in that sphere and we do not work in the Four Goldmines; we work in the Criminal Courts of Justice on Parkgate St., and in district and circuit courts throughout Ireland. This affects every county and community because the reality is that the amounts available to be paid under the criminal legal aid scheme were slashed at the time of the financial crisis in this country by between 30% and 50%, depending on the nature of the payment. It was a significant reduction in the pay available to people practising in the area of crime. We should bear in mind that they were already the worst-paid lawyers in the system, including solicitors, and then their pay was cut by that amount. Everybody took that pain at the time that it was necessary during the financial crisis and they dealt with it. Civil servants, healthcare workers and people providing professional services also took that cut; it was across the board. Yet here we are ten, 11 and 12 years later and the only people for whom pay has not been reinstated is those practising in criminal law, including solicitors and barristers. Their fees remain at the level they were cut to after the financial emergency.

It does not make sense because the State gets incredibly good value from the practitioners in this area. They are all self-employed and none of them works for the State. The State, therefore, does not have to pay them sick leave, maternity benefit, pension rights, PRSI and all the other benefits that come with having employees. The State does not have to pay that; they pay it themselves and they pay for their offices. When we are compared with other jurisdictions around the world, we are incredibly good value for the taxpayer. A number of reports have compared us with other common law jurisdictions in Europe and the most recent one in 2018 shows that the cost of legal aid per head of population was €18.40. Each person in Ireland contributed €18.40 to the cost of having a legal aid system that provides for those who cannot provide for themselves in legal defence. When compared with the figures in England and Wales, for example, our neighbouring jurisdiction, it is €38.14, more than double what it is in this jurisdiction, while in Northern Ireland, it is €73.50. The State gets excellent value and yet it has turned its back on those defending people within our criminal justice system and it refuses, inexplicably, to reinstate that fee.

There is a consequence coming down the road, and people are abandoning criminal law. Although it may not be the case yet that there are no lawyers to do the work of criminal defence, that will happen. It happened to a great extent in the 1980s and it will happen again if the State does not recognise that the only fair thing to do is not to give a big payment out to these people but to reinstate the rates of pay available to them for work in the criminal courts.

Ossian Smyth (Dún Laoghaire, Green Party)
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I thank Senator Ward for raising this matter.

I will provide some background on this issue. The Criminal Justice (Legal Aid) Act 1962 gives expression to the constitutional right that free legal aid must be granted, in certain circumstances, for the defence of persons of insufficient means in criminal proceedings. The Judiciary is responsible for the granting of legal aid. Legal services under the criminal legal aid scheme are provided by private solicitors and barristers who have notified their availability to undertake legal aid work. Thus, they are not public servants but private contractors and are remunerated accordingly. The Department of Justice is responsible for the payment of fees and expenses to these legal practitioners.

As the Senator will be aware, counsel fees under the criminal legal aid scheme were subject to two 8% reductions, which were imposed in March 2009 and April 2010, respectively. These reductions formed part of a broader Government agenda to reduce escalating legal costs and were underpinned by Government decisions. A further reduction was imposed in 2011 primarily to control spending under the criminal legal aid scheme and formed part of a broader Government need to reduce costs across the public service. This was also underpinned by a Government decision.

The Government fully acknowledges and appreciates the very important work undertaken by barristers who prosecute criminal work on behalf of the State. My Department has engaged constructively with key stakeholders, including the Bar Council of Ireland, the Office of the Director of Public Prosecutions and the Department of Justice on this matter. In particular, my Department has sought evidence to support any claims that the reductions imposed are linked to significant recruitment and retention issues thereby potentially adversely affecting the administration of justice.

Based on data put forward by the Bar Council of Ireland to date, there does not appear to be any compelling evidence that the reduction in fees since 2009 has led to significant recruitment or retention issues or to a shortage of counsel prepared to do criminal work to the extent that the operation of the criminal justice system is significantly hampered. My Department of course remains available to review any further information that may be provided. Furthermore, my Department has requested the advice of the Office of the Attorney General seeking clarification as to whether Government has a statutory liability to restore these professional fees. Those advices are awaited.

My Department will continue to keep the matter of these professional fees under review, pending the legal advice that has been sought from the Office of the Attorney General and will continue to engage with key stakeholders, as appropriate.

Barry Ward (Fine Gael)
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I thank the Minister of State. I do not deny that the fees were cut at a time when there was a need to make cuts. It is not the case that criminal and legal aid fees were responsible for escalating legal costs, given that they are controlled by the Government so that is an aspect that is not relevant. Even if it were the case that the Government cannot identify a looming crisis, that is not a good enough reason not to restore these fees. All of the fees paid to professionals whether an architect, psychologist or whatever have been restored but for some reason, the Government refuses to restore the fees paid to criminal legal aid practitioners.

To put this matter in context, if a barrister appears in a District Court for a case then he or she is paid a rate of €25.20 for the privilege plus VAT for however long he or she works that day. It is also a reality that he or she will also have to wait for the solicitor to receive his or her payment before the split fee is passed to the barrister. There is a thing that the Government can do without increasing fees at all and that is to provide a direct payment for barristers out of the District Court, for example, in the same way that they get in the Circuit Court, the Central Criminal Court and other courts. That could be done to ease the burden, particularly on junior barristers. Just because we have not yet seen this crisis coming does not mean that it will not come. It would be a grave mistake for the Government to wait until practitioners have deserted criminal law in their droves to decide to fix the problem. As we know that the crisis is coming, I implore the Government to fix it now please.

Ossian Smyth (Dún Laoghaire, Green Party)
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There have been negotiations with other professions where fees have been adjusted but that has involved changes to the contract and productivity improvements, which involved long negotiations with the representative bodies. My Department is available for continuing discussions with the Bar Council of Ireland, if that does go ahead.I take the Senator's point about his worry there would be a reduction in the quality of service, the numbers available or the ability to recruit or retain people. My Department so far does not have evidence to support that but is open to receiving same, should it be produced. I agree it is something that must be watched carefully.

Victor Boyhan (Independent)
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I welcome the Minister of State, Deputy Peter Burke, to the House. He is always worth waiting for.