Law Society director general Mark Garrett has said that a fair, effective, and efficient criminal-legal-aid system is fundamental to the democratic administration of justice.

The Law Society is urging Government to use Budget 2024 to invest appropriately in the criminal-legal-aid system in the public interest.

“A report on the lack of viability of the criminal-legal-aid system was prepared by the Law Society in 2016 and submitted to the Department of Justice,” Mark Garrett said today (2 October).

“A further submission was sent to the Department of Justice in 2018, outlining how the legal aid scheme could be restructured. Since then, there have been meetings with various Ministers for Justice with broad support expressed, but no action,” he added.

"We believe a fair, effective, and efficient criminal legal aid system is fundamental to the democratic administration of justice. We are urging Government to use Budget 2024 to invest appropriately in the criminal-legal-aid system in the public interest," the director general said.

Disruption

Law Society President Maura Derivan also said that the disruption to normal court service expected this week, as barristers withdrew their services for the first time ever, pointed to the need for urgent action in criminal-justice investment.

Lack of adequate investment in the criminal-justice system by successive governments is having an impact on the availability of legal services and justice, the Law Society has pointed out.

The Society says that continued inaction will directly contribute to the creation of an inequitable legal system made up of those who have ready access to legal representation, and those who do not – whether that is due to affordability, or geography.

The upcoming budget is an opportunity to stem the tide of solicitors and barristers leaving the practice of criminal law and the knock-on consequences for legal representation.  

'Significant cuts'

President Maura Derivan said: “Significant cuts more than a decade ago, and the failure to restore those cuts, is creating an unviable criminal-legal-aid system with clear consequences for access to justice. ‘Legal-aid deserts’ are already emerging in some parts of the country where there may be only one solicitor available to take legal-aid cases, or in some cases none at all."

“In fact, criminal-legal-aid fees paid to solicitors stand at 30% less than they were before the cuts were imposed, without taking account of significant inflation since that time.

"Access to legal representation, and consequently access to justice, is a fundamental human right and, therefore, every effort must be made to avoid a two-tier system.

"We must ensure that we have a sustainable criminal-defence profession to protect the constitutional rights of all people to legal advice in criminal cases – including the right to legal representation where a person cannot afford to pay for it,” the Law Society President said.

Increasing complexity

Chair of the Law Society’s Criminal Law Committee, John O’Doherty added: “Legal aid rates, for solicitors and barristers, were cut significantly in 2008, and again in later years, due to budgetary constraints. However, despite the passing of a significant period of time and the increasing complexity of criminal legal work, as well as inflation, these rates have still not been reviewed – the only part of the public sector not to have had pay cuts reinstated.

“The inaction is having real consequences for access to justice as it is becoming unsustainable for many to practise criminal law. The demand for solicitors providing services to the State’s criminal legal aid system is increasing.

“However, many practitioners are choosing to leave this area of law to work in other areas, or indeed to work for the State, because the remuneration provided in criminal legal aid is simply not sustainable given the demands of the role.

"The Law Society, and in particular the Criminal Law Committee, has been campaigning for many years for these fees to be restored, because we believe it is essential that we have a criminal legal justice system that is both effective and sufficiently funded to ensure access to justice wherever people need legal representation.

“Over the intervening years, many in the Law Society, its Committees and individual solicitors have been continuously working to highlight this issue," O’Doherty said.