Pa Daly (Kerry, Sinn Fein)
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I raise the proposed work stoppages next week by barristers. Last October, in an announcement referring to budget 2024, the Minister, Deputy McEntee, stated:

I am... pleased to have secured funding of €9 million to make progress in increasing the fees payable to legal professionals for criminal legal aid by 10% in early 2024. In conjunction with [that] increase... the intention is to build on the strengths of the criminal legal aid scheme while addressing any issues relating to how it is structured. Engagement will now begin with the professionals... to identify reforms.

This has not happened and it is the reason behind the proposed work stoppages and withdrawal of services.

This withdrawal is an escalation of previous action taken in October last year. That action was suspended in the expectation, barristers say, that the commitment by the Minister would be the beginning of a process. However, according to them, that process has yet to commence.

Barristers, as we know, are key to the smooth functioning of the criminal justice system, prosecuting and defending. It is essential that the State and victims’ cases be prosecuted in the best possible way. Equally, every citizen is entitled to be protected by a vigorous defence, whether by contest or plea. There is a requirement for decent remuneration for the barristers to maintain standards. Efficiencies have been delivered in the past, but barristers are now in limbo without a proper pay review. The pay cut, in real terms, has been one of 40% over the past 20 years, dating from when the Government unilaterally broke the barristers’ link to public sector pay.

Catherine Connolly (Galway West, Independent)
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The Minister has received serious correspondence from the Bar Council and others. They wrote to her on 21 June stating she will recall that in October they withdrew their services because of the lack of confidence in the Government’s commitment to the preservation of the highest standards of administration of criminal justice. That was the first time ever that such action was taken. The barristers are now about to repeat it, for three days this month, owing to their utter frustration over what has happened.

Two thirds of all barristers leave after six years. There is a complete running down of the criminal justice system. A continued exodus of criminal law practitioners has created the conditions for a grave manpower – I would prefer the term “woman power” – crisis in respect of front-line advocacy services. There are several very serious consequences, and these have been outlined. The one that really jumps out at me is the undoubtedly profound effect on the administration of criminal justice and the public good. Skills, confidence and the equivalent of the apprenticeship, namely that involving the master and devil, are all going by the board, and more than two thirds of barristers pull out after six years. There is no independent review, although it was promised by the Government.

Gerald Nash (Louth, Labour)
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A headline in The Irish Times states FEMPI rules have been unwound. That is what the public expenditure Minister said in his annual report on the operation of the 2009 FEMPI legislation, which he laid before the Oireachtas in recent days. Someone should really tell practising criminal barristers that the FEMPI cuts have been unwound because, in their professional lives, they clearly state they have not been. It is a matter of fact that they have not. If the era of FEMPI is truly over, it has to be concluded with no exceptions whatsoever.

We rightly speak a lot in this House about the traumatising impact that the courts process can have on the victims of crime, but we cannot state objectively that we care about the victims of crime if we do not treat fairly the professionals on whom the State depends for the fair functioning of our courts system to advocate, defend and prosecute. The latter were promised a 10% restoration and they received it last year, but they were also promised an independent review mechanism to address the fee structures. They did not get this. Why are they being singled out for this inequitable and downright shabby treatment? The Department of Justice seems to be passing the buck to the Department of public expenditure and reform but I assume it is in fact the former that is responsible for managing and addressing this issue, given that its Minister is before us this evening to answer in this debate.

Helen McEntee (Meath East, Fine Gael)
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I thank all three Deputies for raising this important matter. I appreciate the important role that our legal profession, our barristers and solicitors, play in the administration of criminal justice. I am aware of the proposed withdrawal of services on 9 July, 15 July and 24 July. Like everyone here, I hope this can be avoided. My Department has commenced a review of criminal legal aid. We have a dedicated team of officials working on this. The Department will continue to engage with all relevant stakeholders, including the legal profession, on the modernisation and funding of the legal aid system. Following last year’s increase, a process examining overall reform was committed to, and it was to work in tandem with the legal provision. The team is currently laying down the foundations for an improved, more efficient system of administering criminal legal aid and intends to work collaboratively with all relevant stakeholders. Again, the review and modernisation of the criminal legal aid scheme have been discussed with the Bar Council and Law Society of Ireland. My officials met them recently and I have had conversations in this regard also. Their input is extremely important as part of the overall process.

Last summer, as the Deputies rightly stated, I told the Bar Council that I saw no good reason the legal profession was left waiting for crisis-era reductions to be reversed. That is still very much my position. I said last summer that I wanted to make progress on criminal legal aid in last year’s budget and I did just that. I secured €9 million in additional funding to provide for the 10% increase in criminal legal aid fees, which came into effect from 1 January 2024. I believe this represented progress. I will be equally clear regarding my intentions for this year. I will again seek to make progress in this year’s budget in regard to the restoration of criminal legal aid fees; however, as the Deputies will all be aware, we cannot make budget announcements months ahead of budget day. A budgetary process must be followed here. While I cannot pre-empt a budgetary decision, I hope the progress we achieved last year is a sign of good faith on my part and the part of the Government to the effect that more can be achieved this year.

To further modernise the criminal legal aid system, the general scheme of the Criminal Justice (Legal Aid) Bill 2023 was published in July of 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, moving it to a more modern and online system, which is obviously quicker and more effective for everybody.

Officials in my Department have recently met representatives of the Bar Council and Law Society of Ireland, and it is my intention that significant progress will be made on this matter as Department officials continue to engage with the legal profession. The overall reform has not been progressed as much as I would like. However, a lot of work has been done in the background, and we are making progress in that regard. Separately, I have made very clear my intention to try to make further progress, but all of us, being Deputies, understand how the budget works and that it is not possible for me to stand here and say I will be able to commit to amount X in terms of restoration. However, I am very clear that I believe the fees should be fully restored. I have made progress already and intend to continue to do so. Obviously, however, I would prefer not to have services withdrawn. I am very much aware of the impact this would have on the overall system. We cannot commit to restoration prior to a budget but I am very clear about my commitment to try to restore fees overall.

Pa Daly (Kerry, Sinn Fein)
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I thank the Minister for the reply. Years ago, when there were massive delays in payments, many barristers left the system for a long time. By and large, the system works fairly well but barristers have been increasingly frustrated over the past nine months. I understand that these things take time, but for years now barristers have been told this is a decision for the Department of public expenditure, and that is why we originally submitted our case to that Department. All the barristers are requesting is that they be treated fairly, that promises made be kept and that barristers’ treatment be consistent with that of other State workers and contractors. The Government or Department needs to take action to try to avoid three days of disruption to an already delayed system.

Catherine Connolly (Galway West, Independent)
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We did not get a written reply, so this is difficult. The Bar Council is taking unprecedented action. October was the first time such action had ever been taken, and now we are to have action again for three days. Sara Phelan, chair of the Bar Council, has stated the council has at all times made clear, both to Government and to its members, that it would be willing to allow a period of time up to 30 June 2024 for the review proposed but that nothing has happened. Seán Guerin, SC, chair of the Criminal State Bar Committee, said:

It is highly regrettable that we have been left with no choice but to take this course of action. It has been acknowledged in Government that there is ‘no good reason’ why fees of criminal barristers shouldn’t be restored, yet eight months on from a commitment to establish a review process, no meaningful progress has been made.

This has the most serious consequences for the criminal law, justice and the common good. Barristers are being treated differently. All civil and public servants, including us in this Chamber, have had their pay restored, but not barristers.

Gerald Nash (Louth, Labour)
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Other independent contractors have had their FEMPI-related cuts fully reversed. Barristers have been uniquely singled out for what has been described as extremely shabby treatment.

In some ways, the Minister is answering a question that no one actually asked. No one has asked her about the review of the free legal aid system. I view that as entirely separate based on a commitment that the Government gave to involve itself in the creation of a mechanism that would independently assess the free structure. The Bar Council wants that to be time bound. So confident is the council in its case - it should be, given that it is objectively being treated inequitably - that it is prepared to be bound by a particular mechanism. The Government has asked IALPA and Aer Lingus to get into a room and resolve their difficulties. Barristers have requested meetings with the Minister and the Minister for public expenditure and reform. Will that request be granted in order that they might be advised of the process?

Helen McEntee (Meath East, Fine Gael)
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I mentioned the overall change because this is all part of the work that is being done. This is linked to last year’s 10% increase and is part of improving the overall system, which includes fees, so I would like to think that the action I have taken to date shows my good faith commitment to restoring fees. This is not just about the 10%, but a potential further 8% and another 8% on top of that. That is not going to happen overnight. We had a conversation in the Chamber only a few hours ago when we discussed needing more judges and more resources for judges and more gardaí and more supports for gardaí. I have to ensure that the Department of Justice has a balanced budget that is spread across all of the areas that require it. Some €9 million was allocated last year for a 10% restoration. I have been clear that is my intention to restore fees further separate to any work that is happening in terms of improvements to the system, moving online, changing how we provide criminal legal aid and fees in general. That work will commence and progress, but what the barristers are asking for now is a restoration. I am saying clearly that I will continue to work on that this year and make further progress. I hope that the actions I have taken to date will show that progress irrespective of any of the other work, which will happen anyway. What the barristers want to know is that we are working towards restoration, and that is my objective and intention. Unfortunately, however, I cannot give an overall commitment before the budget has been negotiated and agreed, but I will ensure it forms part of my overall objectives. I cannot be clearer on that.