LAST UPDATE | 14 Jul 2023
BARRISTERS IN IRELAND could be set to strike in October following a recommendation that they “withdraw services” to demand pay reforms for those working on the legal aid scheme.
The Bar of Ireland said yesterday that it has recommended to its members the withdrawal of services “in pursuit of a meaningful, independent and time-limited mechanism” to determine how much criminal barristers are paid under the legal aid scheme.
Barristers will also take to the steps of courthouses around the country today to protest low pay rates for those working in criminal law.
The Council of the Bar of Ireland said that fees for criminal barristers are still lower than 2002 levels in nominal terms, following a range of cuts imposed during the recession.
Barristers and other public servants had their salaries cut under Financial Emergency (Fempi) legislation which was introduced as part of austerity measures that followed the financial crash of 2008.
But the Bar of Ireland says criminal barristers are the only legal workers who have not had their pay restored.
Barristers at the District Court level are paid just €25.20 for a remand hearing under the criminal legal aid scheme.
Barristers’ fees in the District Court are generally taken out of payments made to solicitors, who engage barristers on a case-by-case basis. In other words, the solicitor receives funding under the legal aid scheme, a portion of which is to be paid to the barrister.
Áine Holt BL, a first-year practicing barrister, explained to The Journal that newly qualified barristers are depending on solicitors to approach them with cases, and since the solicitor is responsible for paying them, they may not be paid promptly.
When acting in the higher courts – such as the Circuit Court where more serious cases are tried before a judge and jury, separate fees are paid to barristers.
Holt said: “I can’t understand why that system cannot work as it also does in the District Court.”
Speaking to The Journal, explained that preparing for a remand hearing in the District Court includes consulting with the accused to discuss the allegations and possible bail applications, consultations with gardaí, preparations for legal aid and disclosure applications and writing to the solicitor to outline the allegations and any context surrounding them.
Fees for a plea in mitigation – during which a barrister appeals for lighter penalties for their client, for reasons such as psychiatric or addiction issues – are €50.40 at the District Court level, and full trial hearings pay €67.50.
Lalor said: “All that time and expertise and working at night time to get your case ready for the next day … [we're] walking into shops paying 2023 prices on 2002 wages.”
Speaking on RTÉ’s News at One this week, Seán Guerin SC said that ‘brief fees’ for an indictable case in the Circuit Court stand at €1,144, which could involve a 100-page book of evidence, “hundreds of pages” of disclosure material which the barrister has to be carefully read, and “at least a day of preparation” before the case is heard.
Guerin added that the advent of smartphones has meant that there is often much more evidence in these cases than in 2002, but pay rates have not changed to reflect this.
A petition sent by barristers to Justice Minister Helen McEntee last year stated that “only those with independent resources can survive” on the fees paid in the District Court. “This is enormously damaging to the profession and to society,” it said.
Lalor said: “If you don’t have savings, or if you don’t have a second job and if you go into practice criminal law, you will be there for a very limited period of time.
“You will not be able to pay your mortgage, you will not be able to pay your rent, be able to run your car and that’s the reality of it.”
Holt added that the pay issue was not just a serious matter for barristers themselves, but also for defendants in a case, “who may, in actual fact, be innocent”.
The District Court is the lowest court in the Irish legal system, usually dealing with less serious criminal matters and public-order offences, as well as family law. In criminal matters, punishments can range from poor box fines to sentences of up to two years’ imprisonment.
Holt said that the public perception of barristers is that they are very well paid, “and that is so – but at the very top of the profession.
“It is not so at the very bottom.”
The proposed strike has been scheduled for 3 October, a week before Budget 2024 is announced.
Justice Minister McEntee said yesterday she spoke with the Bar of Ireland council and expressed her belief that pay cuts should be reversed.
Speaking on Today with Claire Byrne, she said: “We’re not talking about astronomical fees here … what I can’t do is pre-empt what’s going to happen in the budget discussions this year.”
Lalor said that some barristers are leaving criminal law entirely, and others are taking their name out of the free legal aid system.
Speaking of younger barristers, Lalor said: “I want them to see there’s a future for them in the Bar, not because of their independent resources, because they deserve to be there. They’ve worked very, very hard to be there.”
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