Fundamentally flawed proposals
The changes outlined by the department have a number of significant problems:
- This proposal amounts to a Cap on Legal Representation: The flat-fee model will act as a cap on the level of legal representation a defendant receives, undermining the right to a fair trial.
- This proposal will drive solicitors out of the Criminal Legal Aid scheme: If solicitors leave the scheme, and they will, access to representation will shrink fast. This has already happened in Family Law where a flat fee was introduced.
- The people who will pay the price are some of the most vulnerable in society: They are children in trouble for the first time. They are people struggling with addiction or serious mental health conditions. They are people who are homeless, victims of trafficking, people who are non-English speaking, and people in acute crisis. Their cases almost always require additional time, additional appearances and patient, repeated engagement with a solicitor - none of which is accommodated by a flat fee.
- Introducing this failed model in criminal law would make criminal legal aid work economically unviable, leading to fewer practitioners and reduced access to legal representation: This proposal will lead to slower court processes and increased delays for both victims and defendants. A person charged with an offence should not, in a modern democracy, find that there is no solicitor available to represent them.
- We fully support Reform of Criminal Legal Aid, but it must be evidence-based: Reform should be developed through independent review and focused on both fairness and efficiency. The Law Society is calling for an independent, effective and time-bound mechanism to determine the appropriate Criminal Legal Aid structures - one that restores fees as promised, ensures remuneration reflects the actual work done, protects defendants’ rights, and supports a sustainable criminal defence system.
- A one-size-fits-all model ignores reality: Criminal cases are complex, variable, and unpredictable. A flat fee does not reflect the reality of criminal practice, where workload, duration, and complexity vary significantly from case to case. The proposal effectively places an indeterminate and often extensive workload against a fixed payment, disconnecting remuneration from actual work done.The Justice system is not a conveyor belt.
- The Department of Justice is seeking to replicate a model that has already failed in family law: There has already been an exodus of solicitors working in family law, reducing people’s access to legal services. It will create “legal aid deserts”, particularly in rural communities. These already exist in family law.
- This proposal is based on Flawed Assumptions from the Department of Justice: The proposal does not reflect the reality of how criminal cases operate in practice. The Department’s proposals are based on the flawed conclusion that the defendant, or their legal representatives, are mainly responsible for delays in the courts. This is simply not the case. The reality is that adjournments are most often driven by statutory requirements and state-side delays. These include delays in providing disclosure (such as CCTV and statements), delays in getting DPP directions, delays in serving books of evidence, delays in obtaining probation and restorative justice reports, as well as challenges accessing interpreters.
- Justice is a right. Not a privilege. And this is enshrined in international law.: Criminal Legal Aid is not a discretionary spending line. It is the mechanism by which the State honours its constitutional obligation and its international obligations under the European Convention on Human Rights and established United Nations principles, to provide a fair trial to every person facing a criminal charge. A flat fee that operates as a practical cap on representation risks rendering those rights completely hollow. That is a serious matter for the State.
- This is not a restoration of fees; it is another cut, with serious legal and policy risks: This proposal conflicts with a commitment in the current Programme for Government to restore criminal legal aid fees.
Our response
Since the flawed proposals were announced, the Law Society has worked to highlight the deep concern across the profession to Government, the media, and across the political spectrum.
You can download key documents related to this work below, including our submission to the Department of Justice, correspondence and parliamentary questions, and slides from a recent information meeting for the profession.
