The provision of legal aid is enshrined in our primary legislation through the Legal Aid Act of 1962. Our Minister for Justice recently brought before the Oireachtas the Criminal Justice Legal Aid Bill 2023 which the Government hope will provide for a more effective legal aid system.
The State has a legal obligation to ensure that those who cannot afford to pay their legal fees are provided with a solicitor and if needs be counsel when facing criminal charges that are grave in nature. The right to a defence by persons charged with an offence is a fundamental cornerstone of the rule of law.
Unlike other countries where the services is provided directly by the State, in Ireland the State outsource that legal obligation under the legal aid act and related statutory instruments to solicitors in private practice.
The benefit for the state is an inexpensive system that only obliges the Government to pay solicitors for the work they do. The benefit for solicitors in private practice is that we can either take on the work or decline to do so, we can do the work together with private client work and build it in to a business model that suits both ourselves, our clients and ultimately the state. It is a system that can benefit both the State and the solicitor but only if the financial arrangements are attractive to all of us. Without solicitors across the state taking on this work the State is in default of their legal obligations to provide the service.
The basic level of payment for legal aid has suffered cuts since 2008 without restoration. The legal aid rates now paid are the same as they were more than two decades ago. It is no longer economically viable for practitioners to participate in the legal aid scheme. This in turn means that there is a danger of accused parties going without effective representation. If we are committed to the rule of law, we cannot allow this to happen.
DSBA through our criminal committee has worked hard to engage with the Minister for Justice in order to resolve this matter over many months. While we are aware that the Minister is in support of fee restoration, nothing has happened.
We are now facing the prospect of our colleagues in the Bar Council of Ireland withdrawing their services on the 3rd October 2023. We support the proposed action by our barrister colleagues.
As solicitors are a statutory profession, we have different obligations and responsibilities and we are not entitled to withdraw our services in the same way. DSBA is committed to supporting its members so that they in turn can assist their clients. There are many practical and legal implications for those persons who are before the Courts on 3rd October and their solicitors. We are engaging with and available to meet with all stakeholders to see what can be done in advance of 3rd October.
Although we have an adversarial system of law it should not be forgotten that we have for many years worked very well with the Bar Council, The State, the DPP, the judiciary and Court Service to ensure that we have an effective system of justice. It is our hope that the stakeholders will sit down and talk before 3rd October to ascertain whether this situation can be averted.
It is worth noting that the proposed new criminal legal aid amendment act suggests that it will establish a criminal legal aid oversight committee under section 39 of the Bill. This is a helpful proposal but it does not suggest that the future arrangements for determining appropriate rates of pay will be determined and reviewed in an independent and ongoing basis.
We call on the Government to act urgently to prevent the withdrawal of legal services on the 3rd October.
Susan Martin- DSBA President