Seanad debates

Tuesday, 9 July 2024

Nithe i dTosach Suíonna - Commencement Matters

Legal Aid

1:00 pm

Photo of Barry WardBarry Ward (Fine Gael)
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I thank the Minister of State for coming to the House. This is an important issue. This morning, I stood in the rain outside the Criminal Courts of Justice with my colleagues at the criminal Bar to demonstrate the importance of this issue. The reality is that cuts were made to the criminal legal aid scheme in the aftermath of the financial emergency in this country.Nobody had a difficulty with those cuts. They were taken in greater measure than many sectors, but barristers and solicitors who work under the criminal legal aid scheme accepted that they were necessary. They have not been restored. We have raised this issue for many long years now. This year there was a 10% restoration, which has left barristers being paid rates that are 20 years old.

This is an important issue. It is singularly unfair that criminal practitioners are the last to have their fees restored. There is a real danger that this will affect the administration of justice. I speak to colleagues all the time at the Bar, particularly junior colleagues, who are choosing not to practise criminal law because they cannot make a living at it. It is unsustainable to expect them to work in the District Court for €27, which may be the only fee they receive in a whole day. They might have to drive some distance to earn that fee and may spend more money on petrol or diesel doing so. This is not sustainable, and it will have a knock-on impact on the entirety of our criminal justice system. This will be seen in a decade from now when nobody is practising criminal law and we do not achieve the standards of representation we expect from the sector. That will result in delays for victims, miscarriages of justice and all kinds of other knock-on problems. The Bar of Ireland and other criminal practitioners have made a reasonable request, not for the State to give them extra money but put that money back to where it was.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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The criminal legal Bar has a greater proportion of women working in it than any other area of law. It is the most poorly paid of the legal sectors. There is a fundamental injustice in that and that women are left to the side to tolerate and take on whatever is going. The criminal Bar is fundamental to our Constitution. It is the place where heinous crimes and the standards of society and what is acceptable and unacceptable are tried. It is the place where people who may be accused in the wrong need good legal representation to ensure the State is not guilty of miscarriages of justice. We had a funeral last weekend of the last man hanged in the State, and it was a miscarriage of justice in that instance.

We need constant representation because the criminal courts are where a disproportionately high number of people from socially deprived areas are represented. The least we might do is to ensure that none of them are accused in the wrong. Just because they are from impoverished communities does not mean that they should fall prey to this. That is not being a do-gooder but abiding by the Constitution of our Republic and ensuring that no citizen is at risk of being accused in the wrong. It is ensuring that all citizens are protected under the criminal justice laws of our society and State. We need to ensure that crimes are prosecuted properly and with the full rigour of the law. It is also important that any of us who could be accused in the wrong in the morning has good legal representation.

I was called to the Bar in 2012. Of the 120 people who were called to the Bar that July, only two still practise criminal law. They are a man and a woman, so we at least have one of each. There is, however, an appalling injustice being done to the criminal Bar as a result of the failure to restore barristers' payments.

Photo of Emer HigginsEmer Higgins (Dublin Mid West, Fine Gael)
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I thank the Senators for raising this important matter and I acknowledge their passion for and work on this issue. I will first reiterate my and Minster for Justice, Deputy McEntee's, appreciation of the important role played by barristers and solicitors in the administration of criminal justice. I also acknowledge the important role that women play in this sector, as Senator Seery Kearney pointed out. I am aware of today's withdrawal of services and further proposed withdrawals of services on 15 and 24 July. I hope these further withdrawals can be avoided.

Having undertaken to make progress in criminal legal aid in budget 2024, the Minister did just that. As acknowledged by Senator Ward, the Minister secured €9 million to provide a 10% increase in criminal legal aid fees, with effect from 1 January 2024. The Minister has been equally clear regarding her intentions this year, advising the Dáil last week that this crisis-era reduction should be restored.The Minister will once again seek to make progress in this year’s budget with the restoration of criminal legal aid fees and is working to secure the remainder of the restoration to the fees, namely, the two 8% cuts within the context of the budget.

As Senators will be aware, we cannot make budget announcements months ahead of budget day and there is a budgetary process that must be followed. As part of this work, the Department of Justice has commenced a review of criminal legal aid as linked to last year's 10% increase, and as part of improving the overall system, which includes fees.

A dedicated team of officials are currently working on the review. They are laying the foundations for an improved and more efficient system of administering criminal legal aid and intend to work collaboratively with all stakeholders. Indeed, the review and the modernisation of the criminal legal aid scheme was discussed with the Bar Council and the Law Society when the officials met with them recently. Their input is an important part of the process. The Department will continue to engage with all relevant stakeholders, including the legal professions on the modernisation and the funding of the legal aid system.

To further modernise the criminal legal aid system, the general scheme of the Criminal Justice (Legal Aid) Bill was published in July last year. The key purpose of the Bill is to transfer the administration of the criminal legal aid scheme to the Legal Aid Board and otherwise update the administration of criminal legal aid. The Bill will modernise the operation of the criminal legal aid scheme, introducing strengthened oversight and governance structures. It is the intention of the Minister for Justice that significant progress will be made on this matter as Department officials continue to engage with the legal profession.

The barristers and solicitors ensuring the fair and effective administration of criminal justice play a crucial part in the justice system. As I have mentioned, the Minister said last summer that she wanted to make progress on criminal legal aid in last year's budget and she did that. She has been clear about her intentions to do that again this year. However, as I am sure Senators can appreciate, nobody can make budget announcements months ahead of budget day. The Minister, and her Department, are committed to continuing to engage with and work with the legal professions and all relevant stakeholders to reach a resolution on this matter.

While I hope further withdrawals of services can be avoided, I understand from the Courts Service that the absence of legal representatives for any reason it is open to each court and judge to adjourn the matter to another date. The Department of Justice has been and will continue to engage with everybody, including the legal professions, on the modernisation and funding of the legal aid system. That really is the key message from the Minister today.

Photo of Barry WardBarry Ward (Fine Gael)
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I appreciate the Minister of State’s sincerity in this regard, and what she said about recognising the importance of legal representatives and the role played by solicitors and barristers. I confess, having spoken to them outside the courts this morning, that they do not feel that importance is recognised and if a further withdrawal of services is to be avoided, there is a very simple way to do so. I recognise what the Minister of State said about not making budget announcements but the time is now to make that change.

In reference to the legal aid Bill, the review of criminal legal aid is fine. The report by the Joint Committee on Justice on the pre-legislative scrutiny was very clear that there is no basis for moving it out of the Department of Justice and into the criminal legal aid board. That is something I hope will be taken into account in respect of the Bill.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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The fact needs to be emphasised that there is a public perception that barristers are extremely well paid. A very small minority are extremely well paid; the vast majority are not. They struggle in the same way and, in fact, are in a life, no more than ourselves in politics but even to a greater extent, of precariousness. Barristers can work extremely hard unpaid hours on a case but by the time that case gets into court there are other things going on and they have to hand it over to someone else to collect fees. All of that needs to be considered here and respect given to the fact that they are the bulwark of the Constitution.

Photo of Emer HigginsEmer Higgins (Dublin Mid West, Fine Gael)
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I hear what the Senators are saying and I will convey their feedback to the Minister. The main message is that, from a budgetary perspective, it is very difficult to make budgetary announcements ahead of budget day and I know that the Senators appreciate that. I understand their sincerity and passion about this matter. I also understand that they want to see a resolution and that is something the Minister also wants.