Why criminal barristers could be on the verge of unprecedented industrial action

The Government could face unprecedented industrial action by criminal barristers unless it reverses cuts to criminal legal aid fees made more than a decade ago.

Barristers working under the criminal legal aid scheme are working for as little as €25 a day in the District Court and there is “a real danger” that, unless the fees are restored, barristers will be reluctant to take on criminal defence work, barrister Darren Lalor has warned.

Mr Lalor is among the organisers of a protest by lawyers on May 2nd over fee cuts from 28 per cent upwards imposed between 2008 and 2011 under emergency legislation reducing public sector pay. It follows earlier protests in March and April 2022.

The May action will see barristers gather on courthouse steps between 11am and 3pm.

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According to Mr Lalor, there is strong support for protests from many levels within the profession.

Some colleagues favour strike action unless the cuts are reversed; others are leaving criminal defence work, and law students are very concerned they will be expected to work for such fees, he said.

“There is a real danger that good people are put off doing criminal defence work because they do not have their own independent resources to fund them through years of earning next to nothing,” he said. “Having a second job to sustain the first job offends the rule of common sense and is not unprecedented for those who wish to continue practising in our criminal justice system at District Court level.”

Some barristers in Ireland have been inspired by successful industrial action by criminal barristers in England and Wales last year. Initiated in April by the Criminal Bar Association (CBA), the action was extended in June to include court walkouts and was escalated in September, with the support of some 80 per cent of members of the association, to include indefinite strike action with a view to bringing the criminal justice system to a standstill.

Last October, the CBA voted to end its strike and to accept a deal from the British government of an extra £30 million on top of an earlier 15 per cent increase in criminal legal aid fees recommended by an independent review of criminal legal aid.

Representatives of the council of the Bar of Ireland have met Minister for Finance Michael McGrath as part of the campaign to restore criminal legal aid fees. It is understood a final decision on fee restoration rests with the Department of Public Expenditure and Reform.

Fine Gael Senator and spokesman on justice Barry Ward, a barrister who has raised the fees issue in the Seanad, said the time has come for the Government to act.

“We are now at a stage where lawyers are planning industrial action in May of this year because of the low rates of pay for practitioners in criminal law,” he said. “This is an unprecedented step by barristers and solicitors, who have not taken action before because of the important role they play in the administration of criminal justice.”

The low pay rates have caused significant hardship for individual solicitors and barristers, with many leaving the practice of criminal law in favour of more stable and more profitable areas of law, he said.

The failure to unwind the cuts means the departments of Justice and Public Expenditure and Reform are impacting the defence, but also the prosecution, of serious offences in Ireland, Mr Ward said. The fees paid to prosecution and defence lawyers are set at a parity under legislation, and failure to restore defence fees also means failure to restore prosecution fees, he pointed out.

“Contrary to the view that lawyers are all very well paid, the reality is very different for many criminal practitioners who are paid the lowest rates of any section of the legal profession. If the Government is serious in its commitment to dealing with criminality and the prosecution of offences, and if there is real respect for the administration of justice in Ireland, steps will be taken to restore, reasonably, the fees paid to criminal legal aid lawyers, both solicitors and barristers.

“I understand that provision has been made in the Department of Justice budget for this to occur, and sign-off is required from the Department of Public Expenditure and Reform. I hope that this will now happen; it is overdue and necessary.”