Flat fees risk ‘lasting harm’ – Law Society
President of the Law Society Rosemarie Loftus has told an Oireachtas committee that a flat-fee system for criminal legal aid in the District Court risks causing “lasting harm” to the effectiveness of the criminal-justice system.
She was speaking at a meeting (30 June) of the Joint Oireachtas Committee on Justice, Home Affairs and Migration, where Minister for Justice Jim O’Callaghan defended the proposals.
The plans have led to solicitors from across the country resigning from criminal legal-aid panels, with the Law Society saying that this will have a “devastating impact” on access to justice.
The minister confirmed at the meeting that the flat fee, which comes into effect today (1 July), would be €520 for representation from beginning to end of a case. The original proposal was for a fee of €455.
Sliding payment scales
He added that cases sent forward for trial in the higher courts would now attract a full flat fee of €520, instead of the initially proposed fee of €100.
“It is my clear view that the current fee model, based on sliding payment scales, granting payments for multiple appearances, is excessively complex, incentivises solicitors to seek multiple hearings, delays trials, and is administratively burdensome and inefficient,” he told the committee.
The minister said that an analysis from the Department of Justice had found that criminal legal-aid cases take “significantly longer” and involve “more appearances than necessary, consuming valuable court time and resources”.
Proposal based on ‘misunderstanding’
The Law Society president told the committee, however, that the full version of the analysis on which the changes are based had come into its possession only ten days ago.
“What is clear is that one of the central aims of the flat-fee proposal is to reduce expenditure,” she stated, adding that the paper had recommended a flat fee of €582 based on an average of six court appearances, rather than the €520 now planned, which is based on a figure of five appearances.
The Law Society has argued that the proposal is based on “a fundamental misunderstanding” of how the District Court operates.
“The minister and the department have made the assumption that delays are caused by solicitors seeking to maximise fees. In reality, the overwhelming majority of adjournments are sought by the State to allow time for disclosure, DPP’s directions, or forensic reports,” Loftus told the committee.
“The department’s desk-based review could never have captured the reasons for adjournments, as these are not recorded,” she added.
Review call
The president called for a separate or enhanced fee for categories of cases where the length of proceedings was known to be longer – including those involving children, people with mental-health or capacity issues, and cases involving people held on remand.
The committee heard that the Law Society was calling for a post-implementation review of the scheme to be conducted after the first six months of operation of any new model, with a further review again at 12 months.
The organisation also wants a commitment from the department to publish a quarterly county-by-county breakdown of the number of solicitors undertaking criminal legal-aid work in the District Court.
Minister O’Callaghan told the committee that his officials would continue to keep the operation of the new arrangements in the District Court under review.