The first ever strike by barristers is set to go ahead after the Minister for Justice indicated that any move to reverse recession-era cuts to criminal legal aid fees is unlikely before the budget.
Bar council chair Sara Phelan said it is “all systems go” for Tuesday’s strike by criminal barristers which she said is strongly supported by their civil law colleagues and by solicitors.
The reversal of the cuts has been supported by the Minister for Justice and the Director of Public Prosecutions since 2018 and barristers believe the stumbling block to that happening is the Department of Public Expenditure and Reform.
Asked on RTÉ Radio’s This Week on Sunday why she had not intervened to head off Tuesday’s strike, the Minister for Justice Helen McEntee said she is engaged in negotiations on the budget, to be announced later this month, and had told barristers that directly.
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“I won’t and I can’t say anything further at the moment,” she said.
Asked about comments by Chief Justice Donal O’Donnell in an Irish Times interview expressing disappointment both about the “reluctance” to restore criminal legal aid fee levels and about the apparent lack of engagement and explanation for that, she said her response “more generally” is there has been “huge” change and investment in the court structure.
“The topic we’re talking about now is part of that and what I’m saying very clearly is that I’m engaging at the moment with the Minister who himself and his department have been nothing but supportive in these changes of which the barristers have been a part of and it’s all part of a wider vision of how do we support not just the criminal but the civil side in our courts and, most important, how do we make it easier for people to access and go through this system.”
Ms Phelan, speaking to The Irish Times, said it is “all systems go” for Tuesday’s action and she is disappointed about the lack of response from Government since the council gave strike notice on July 12th.
There will be applications on Monday to have cases listed for Tuesday adjourned to Wednesday, she said. While noting media reports suggesting about 1,200 matters may be affected, she said that includes case mentions and not full trials.
Barristers who opt to participate in the action will not attend court on Tuesday, communicate with solicitors, do paperwork or claim fees. Protests are organised between 10am to 1pm outside courthouses where criminal matters were, or are, listed for hearing, including at the Courts of Criminal Justice in Dublin and courthouses in Castlebar, Cork, Dundalk, Longford, Limerick, Monaghan, Naas, Nenagh, Sligo, Trim, Waterford and Wexford.
The Bar has engaged “as thoroughly as we can” with all stakeholders to ensure the withdrawal of services is as orderly as possible and has measures in place for dealing with clients in custody or emergency applications, Ms Phelan said.
Since 2016, the Bar has drawn the attention of Government to the impact on the wider justice system of the cuts, she said. Criminal legal aid fees are more than 40 per cent less in real terms than the rates paid in 2002, she added.
Pay restoration was made conditional on co-operation with delivery of efficiencies and reform in the provision of public services. A 2018 review led by the office of the DPP in conjunction with the Department of Justice found the Bar had met this condition and recommended the cuts be reversed, she said.
“It is important to note we are not looking for fee increases, this is about getting a mechanism to determine fees for criminal legal aid work.”
It is “very concerning” that about two-thirds of barristers in criminal practice leave after six years, she said. Without skilled and experienced barristers, the criminal justice system cannot function and this is very much a public interest and administration of justice issue, she said.
Representatives of the Bar, Department of Justice, the Probation Service and Rape Crisis Network Ireland, are among the organisations due to address the Oireachtas Justice committee on Tuesday afternoon as part of its scrutiny of the Criminal Justice (Legal Aid) Bill 2023 which tightens eligibility for legal aid.
Barrister Darren Lalor, one of the organisers of earlier protests about criminal legal aid fees, particularly at District Court level, will also address the committee. He wants a new system of direct payments to barristers, rather than through solicitors, for fees for District Court work, including remand hearings and trials.
The barrister fee for a District Court remand hearing is €25.20, a plea in mitigation is €50.40 and a trial fee is €67.50. The fee for a Circuit Court trial is €1,100.
