Everyone is welcome back. The purpose of this part of the meeting is to have an engagement on criminal legal aid and related matters. On behalf of the committee, I welcome from the criminal law committee at the Law Society of Ireland, Ms Rosemarie Loftus, president, and Ms Amanda Connolly, vice chair. Dr. Shane McCarthy, who was originally scheduled to appear, was involved in an accident last night. We wish him a speedy recovery. Representing the Bar of Ireland, we have Mr. Séamus Clarke, who is the new chair. We wish him well in his tenure. We are joined again by Ms Aoife O'Leary, chair of the criminal state bar committee. We are also very pleased to welcome practising solicitors who will bring a first-hand account of the criminal legal aid scheme and the recent changes. I welcome Mr. Tony Collier and Mr. Michael Finucane. Our guests are all very welcome.

Members will be aware that, unfortunately, the Minister was unable to be present today. However, we want to make it clear that this committee is eager to have an engagement with the Minister on this subject. We will make ourselves available any time both he and the secretariat can facilitate that taking place.

To outline the format of the meeting, we will ask each individual who is making an opening statement to do so for a maximum of three minutes. We will then call members of the committee to have five-minute engagements.

Before I invite our guests to make opening statements, I will explain some limitations to parliamentary privilege and the practice of the Houses as regards references that may be made to other people in evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected, pursuant to both the Constitution and statute, by absolute privilege. Members and witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that any such directive is complied with.

I will now ask each organisation and individual to deliver an opening statement. I will begin by inviting Ms Loftus to do so on behalf of the Law Society.

I thank the Cathaoirleach and members of this committee for the opportunity to address them again on the ongoing matter of the new criminal legal aid system and scheme that was introduced on 1 July last. Despite efforts and some constructive engagement before the summer recess, the two core issues still remain to be resolved. As the days, weeks and months pass, the impact of the negativity will more adversely affect the administration of justice and the heightened delays and anxiety will be more prevalent. We obviously need to address this.

I am joined today by my colleague Amanda Connolly, vice chair of the criminal law committee.

The Law Society has been calling for reform of the criminal legal aid system for many years. However, we have always believed and advocated for evidence-based reforms leading to a practical system. In seeking reform, our ultimate objective is the same as that of the Department of Justice, Home Affairs and Migration, that is, a sustainable criminal legal aid system that protects access to justice, supports the effective administration of justice and commands the confidence of those who use it, need it, rely on it and work with it.

Criminal legal aid is a cornerstone of our justice system, serving as a vital mechanism to uphold the constitutional right to legal representation. By protecting the right to representation and ensuring a fair trial, the criminal legal aid scheme ensures that justice in Ireland remains a fundamental right for all. The new scheme takes a one-size-fits-all, uniform approach that is especially problematic as it has no regard to the complexity of cases coming before the courts. The scheme is based on a fundamental misunderstanding of how the District Court operates. It prioritises administrative efficiencies over fairness. It also replicates a flawed model that has already failed in civil legal aid.

In an effort to resolve this impasse, the Law Society is renewing its call for an independent mediator who could help to bridge the gap between the policy objectives of the Department and the practical realities experienced by everybody working in the courts. In seeking to find a resolution, there are two outstanding issues that have always been core to solicitors' concerns, which are, first, the treatment of separate and distinct criminal cases as a single matter where they happen to come before the court on the same day and, second, the absence of any practical mechanism to address cases of extended duration involving exceptionally high numbers of court appearances.

The backdrop to all this is a Courts Service and justice system facing a real and negative impact. It is stark that the number of legal aid certificates granted has collapsed compared with July 2025, down by 93%, from 10,277 to just 702 in July 2026. The scale of the reduction is reflected in courts across the country. A fall of this scale is deeply worrying in itself.

The effectiveness of the constitutional right to legal representation is threatened by the current situation. Under the Criminal Justice (Legal Aid) Act 1962, the State is required to provide legal representation to those who cannot afford it. The Law Society remains committed to finding a workable solution to the outstanding issues. We are available to meet with the Minister at any time, and we urge him to engage with us as soon as possible. The Law Society does not accept the Minister’s view that it would be inappropriate to address these issues in advance of the judicial review judgment due next month. The commencement of the new legal term in October traditionally results in a high volume of trials being listed, especially long-running cases exceeding four weeks. The availability of legal representation will be essential for these trials. Every day that passes sees people denied meaningful access to justice.

We come before this Oireachtas committee today in good faith seeking a resolution. The Law Society is ready to engage immediately. Criminal defence solicitors want to work within a practical and realistic scheme. They want to ensure their clients are well represented and have access to justice.

I thank the Chair and members of the committee for the opportunity to address them on criminal legal aid. The issue before us is not simply a disagreement about fees. It is about the obligation on the State to maintain a functioning criminal justice system that protects victims, vindicates the rights of accused persons and commands public confidence. The disruption to the criminal courts since July is already serious. The criminal justice system, including trials and sentence hearings, has been significantly impacted and a backlog is accumulating. For victims, delay prolongs uncertainty and distress. For accused persons, it postpones the determination of fundamental rights. For the public, it weakens confidence that justice can be delivered promptly and fairly.

The Bar of Ireland supports reform that improves efficiency, reduces unnecessary delay and ensures that public resources are used effectively. The methodology of the new District Court fee structure, which calculates flat-rate fees on averages, is problematic, as averages can conceal the cases that place the greatest demands on the system. DPP directions, disclosure, bail reviews, probation reports and victim-impact evidence are frequently essential to due process, arise in complex cases and are outside the control of defence practitioners. Necessary appearances should not be treated as inefficiency and the new system should not disincentivise the handling of complex cases. Complexity arises when separate charges require separate preparation. Cases involving children, vulnerable people, defendants in custody, extensive disclosure or psychiatric evidence cannot fairly be assessed by reference to the simplest cases. Therefore, complexity in particularised areas must be accounted for within the new scheme. While we welcome the Minister's willingness to examine children's court data, complexity is not confined to one court or category of defendant and must be examined across the criminal legal aid system.

While the numbers of practitioners remaining on criminal legal aid panels reported in the media is relevant, panel membership is not the same as effective availability. There is acceptance by the Minister that representation is not available everywhere and Dublin is identified as a particular challenge. This is significant given the volume of cases that ordinarily are heard in Dublin's criminal courts. The practical test is whether suitably experienced practitioners are available throughout the State to progress cases of every level of complexity.

The warning from civil legal aid is clear. Inadequate and static remuneration, combined with increasingly complex work, has driven experienced practitioners from that scheme and contributed to unacceptable waiting times for those seeking access to legal advice including for chid access and domestic violence. We must not reproduce that failure into the criminal justice scheme and act only after capacity has been lost. We ask the Minister to engage urgently with the Law Society and front-line practitioners to assess complexity and to provide a targeted mechanism for genuinely complex or exceptional cases. The pending judicial review need not prevent further engagement on the system's practical operation. The priority now must be resolution of the dispute so that victims, accused persons and the public have access to a well-functioning and sustainable criminal justice system now and into the future.

My colleague Tony Collier and I have submitted a written statement. I am going to speak to it and will make a few additional comments.

June 2026 marked the 17th month of Deputy Jim O'Callaghan being in post as the Minister for justice. By the time he had reached his 18th month, virtually all criminal defence solicitors in the country had withdrawn their services and the criminal justice system was largely at a standstill. Prior to this, the system was functioning, albeit in a largely dysfunctional way. We saw insufficient numbers of judges, prison overcrowding, a lack of viable alternatives to prison or other community-based programmes and an underfunded and underdeveloped probation service, as well as an underfunded juvenile diversion programme. Within this, criminal defence solicitors were still working for rates of pay that have remained at 2014 levels - 30% below the rate at which they had been paid before the financial emergency measures in the public interest, FEMPI, national programme of austerity.

It has to be said that successive Governments have failed to invest properly in the justice system. This is despite the fact that there are nearly twice as many public courthouses in the country as public hospitals. The total number of individual courthouses in Ireland, according to the Courts Service website, is 127. There are 67 public hospitals. Yet, the total spend on the justice system every year is criminally low. To put that in context, the amount spent each year on the Courts Service and the Judiciary combined would not run the national public health service for one week. It is in that context that the Minister for justice unilaterally imposed his new flat-fee model without ever seeking any real input from the people he expected in it and criticising them as he did so in order to justify the changes.

The Minister and the Department have rejected suggestions from solicitors and the Law Society as an institution to agree to small modifications to the new system that would address more complex and long-running cases, which occur all too frequently. This has been dismissed as incompatible with the reforms introduced by the Minister, yet a flat-fee model with allowances for complex cases or additional pieces of work is precisely the model operated by the two jurisdictions closest to our own.

In England and Wales, the system of payment for criminal legal aid cases starts with a low flat fee for basic cases, but as they become more complicated, additional payments are allowed for each job of work required. A similar structure exists in the North. There is a small additional fee for a bail application, for example, and an hourly rate for reviewing case evidence or preparing a defence. If the prosecution is complex or involves a more serious type of offence, this is recognised in the payment system, and an allowance is made. Nowhere is it evident that the Minister or his Department has put anything like this kind of thought or consideration into his flat-fee model.

The profession has pointed out to the Minister repeatedly that certain classes of cases are inherently more difficult and more complex than others. Cases involving juveniles, for example, have been put forward time and again, but this has been ignored despite widespread recognition of the sensitive and specialised nature of the work. In 2024, the UK's criminal legal aid independent review, CLAIR, in its report relating to children's court work, stated that child defendants are some of the most vulnerable and benefit from tailored specialist support. In addition, it stated that youth court work requires an understanding of the distinct youth justice system, process and sentencing options. It stated that building up trust and understanding with a child can be challenging and requires extra time and effort to be given. The report highlighted that current youth court fee levels may lead to inexperienced lawyers taking on these cases who may only have a short time to meet with a child, to engage them, understand their case and win their trust, and thus represent their interests effectively. CLAIR therefore recommended that criminal legal aid fees payable in the youth court be increased to reflect the importance of the work and seriousness of the young defendant's situation. This is precisely the same as what the Law Society, the Bar Council and criminal defence practitioners have been telling the Minister for months. His response was that he would keep data under review and think about it.

A fixed fee for each person, as distinct from each case, does not allow for the investment of time and resources necessary to provide a service of any quality by a dedicated and experienced solicitor. The neighbouring jurisdictions have had their own experiences with industrial disputes and withdrawal of services, but these have been resolved eventually through dialogue and consultation. A recent document on legal aid reform in Northern Ireland was published by the justice Minister, Naomi Long. In the introduction, she commented as follows:

The key objective of these proposals is securing access to justice for victims, witnesses, and defendants. The proposals aim to support the long-term viability of the legal professions. There must be fair payment. There must also be a proactive approach to succession planning and diversity must be promoted and supported.

I would like to thank the professions for their co-operation with the review and recognise the professionalism of the Solicitors Criminal Bar Association who have engaged constructively to find a way forward through the process while continuing to serve their clients and the system. The introduction of these proposals comes after significant investment by the Department to preserve evidence-based fair levels of legal aid remuneration.

It has to be said, regrettably, that the tone and content of these remarks are very different from the atmosphere created by our Minister for justice. His approach has led to hostility and resentment from the solicitors profession. It did not have to be that way. A considered approach with real engagement and discussion could have avoided the need for any of the disruption we have seen. The profession looks forward to the Minister behaving in that way.

We will proceed with five-minute interactions. I ask our guests to be mindful of that to see if we can allow for a second round, which might be difficult. I will start by asking a couple of questions, beginning with the Minister's assertions, both in writing to this committee and on the floor of the Dáil, that the courts system continues to operate effectively despite the abuse. I ask in particular the practitioners who are dealing with the courts on a daily basis how that corresponds with the evidence they have given and the reality as they see it. I ask for clarification on whether practitioners have actually withdrawn from legal aid work and, if so, how many. What is the impact in various geographical locations, because the Minister has indicated that this is Dublin-specific? What impact is all of this having on victims, witnesses and defendants? I ask for clarification on whether Garda interviews are currently proceeding without solicitor attendance, even when requested.

In terms of the impact on victims and on the wider system, I have received two reports in the past 24 hours indicating that the lack of legal representation has allowed instances to happen live in court whereby accused persons in cases of domestic violence, in other words, the alleged abusers, have been permitted to cross-examine the person who has made allegations against them. Can any of our witnesses confirm whether that has happened and, if so, whether it has happened on multiple occasions and whether that scenario is likely to unfold again if this dispute is not resolved? Mr. Collier or Mr. Finucane can begin before we see if we have time for representative bodies.

I will address some of those issues. In relation to the availability of solicitors under the criminal legal aid scheme at this time, across the country there was a very large withdrawal from around mid-June. A number of solicitors have gone back but it is a relatively small number when we look at the overall number providing criminal legal aid services to the public. For instance, Dublin has an almost complete withdrawal, save for, I believe, two small law firms. Therefore, for Dublin cases in the Criminal Courts of Justice, there has been no progress at all in the biggest criminal justice venue in the country since the dispute started.

I was in the Central Criminal Court on a date in July. Twelve rape cases were listed on that morning, called over for trial. Given the dispute between solicitors and the Minister, only two of those cases could proceed, and they were two protocol cases, which are cases involving juveniles. Over the course of August, there were two courts sitting each day in Dublin. These special sittings were not serviced by criminal defence solicitors. That resulted in a large number of Article 40 habeas corpus applications to the High Court over August, and those applications are continuing into September. Since the District Court returned after the summer vacation in September, there has been no provision of criminal legal aid services in Dublin, save for a few small exceptions.

The trial courts are due to open on 5 October. That will involve the Circuit Criminal Court, the Central Criminal Court and the Special Criminal Court. The position of solicitors at the moment is not to provide services in respect of cases where the accused persons are on bail. However, they will provide services where accused persons are in custody or if it is a protocol case.

Reports in the media and reports from the Department of justice are very confusing for people on the ground because we do not see the level of take-up that the Minister is stating. He is relying on a number of statistics to make his case that there is take-up and that solicitors have involved themselves in his new criminal legal aid model. Those statistics simply cannot be trusted in any way for a number of reasons. The statistic he is relying on is the number of legal aid certificates that have been issued by different courts. A legal aid certificate is normally issued by the application of a solicitor on behalf of an accused person. During the course of this dispute, judges are issuing legal aid certificates without an application by solicitors. They are doing so in order to try to meet their constitutional obligation to ensure somebody has a legal aid solicitor. However, the issuing of that legal aid certificate has no effect. It is a zombie legal aid certificate, if you like, and those certificates are going into the statistics. As I said, when reading media reports, it is difficult to see how the Department of justice has taken the view that there is significant take-up in the legal aid.

On Garda stations, where an accused person is arrested, detained and questioned in relation to a serious criminal offence, they are entitled to have a solicitor present in the Garda station. Again, those services have not been available since mid-June. It is surprising we do not hear very much about it. It is building up problems for the future with these criminal trials if these people are eventually charged. It is building up legal challenges in the future. It would be useful to get information from An Garda Síochána. The Commissioner made a comment in June about this but we have not heard anything from An Garda Síochána since. We know anecdotally and first hand that gardaí are ringing up to 15 to 25 solicitors trying to obtain a solicitor for an accused person to respect their constitutional right to legal advice when they are detained.

The dispute is widespread. There are certain counties that have returned to work-----

Can Mr. Collier answer the question in respect of domestic violence cases and the accused being in a position to cross-examine the witness who, in many cases, is their former partner? Is that happening?

I am aware of the case the Cathaoirleach is referring to, where an accused person accused of a domestic violence offence was not legally represented. Every accused person has the right to face their accuser irrespective of it being a domestic violence or any other offence and in the absence of a solicitor being made available to the accused person. To be clear, the obligation lies not with the solicitor profession to provide this. The constitutional obligation lies with the State to provide a solicitor. The particular circumstance of that case, with the accused person cross-examining an injured party, is not particularly surprising. It may sound shocking but given the volume of cases, there are very specific courts in Dublin dealing with domestic violence cases-----

I have to allow others in. We might be able to elaborate on that point later.

One of the things I find difficult to believe is that a Minister for justice can stand in front of the media of this country and talk about the courts system "operating effectively". In the experience of those who are in the Courts Service and those who wake up thinking about it every day, is the Courts Service operating effectively?

To support what Mr. Collier said, there is a reliance on selective data but what we have is the data in relation to the July figures, which has come from the Courts Service. In 2025, there were 10,277 certificates issued, whereas in 2026 for July, 702 certificates were issued. That is a 93% reduction. We have now received the August figures. It fell from 2,868 certificates in 2025 to 395. That is an 86% reduction. That is serious. There are figures in the media that been given for September, but last September there were 10,536 certificates. That is an average of 2,000-odd per week.

This is not an industrial relations dispute in the traditional sense like we probably will see a lot of shortly. Solicitors by their very nature are sole traders. There is simply a price that the Minister has paid and solicitors are simply saying, "We cannot afford to meet that." They are not necessarily on strike. The Minister has just created a system by which there is nobody to implement. It is a failure of workforce planning. One part of that is that solitictors are no longer going to police stations with those who are accused. Is that still ongoing?

That is still the position.

In the Supreme Court cases of the DPP v. Gormley and DPP v. White, the Supreme Court found that detained persons who request legal advice should not be questioned before receiving it. Is that the case?

That is the correct legal position.

It is extraordinary, if we have a Supreme Court case, that we could possibly see people who have not been able to get legal advice in the police station just being released. We have not got to that point yet, but that is one potential. I do not blame any of the solicitors for that. That is a failure of workforce planning on behalf of the Minister. All the while, the Minister still continues to not engage. Is there any reason by which a judicial review that may take place in the next couple of weeks will mean that the Minister should not engage in mediation? Has that been a determination of a court? Has anyone come to that conclusion? Is there any precedent by which that should happen or is that just simply a Minister deciding that he is not going to engage?

Not that I am aware. The most recent time that we met the Minister face-to-face was on 27 July when the judicial review was already in being and before it was finalised. I do not see why there is an impediment to it now when there was not at that point in time.

Subsequent to that meeting, the Minister went again to speak to the media and said that the Law Society simply bag concessions and move on. How helpful is that language?

That is not the case. There is a resolution. The resolution to this is possible. This is an easy fix in relation to what we have asked for. It is reasonable in relation to the proposals that we have put down. We want to go back into work. We did not pick this fight.

How helpful was that language on behalf of the Minister?

We just want to go back to work and that is our bottom line. We have put forward proposals that we think are amenable to allowing that to happen for everyone.

It is important to add the reality is that the two core issues we still say exist, which if resolved would allow people to go back, have been on the table from very outset. We have reiterated that on every occasion. It is solvable.

One of the issues relates to single certs. I ask the witnesses to explain that. The presentation to the media seems to be that solicitors are taking credit for multiple certs for the same case essentially, but that is often not the case. I imagine outside of Ireland that some of these might involve travelling to different courts and having to stand in front of a different judge. If I were to listen to what is in the media, it seems to suggest that solicitors are just taking double payments where it is not necessary.

It is clearly not the case. The single flat fee model introduced by the Minister would leave a solicitor in the particular position where an accused person comes before the courts, for example, on a Monday morning and is charged by four or five different gardaí for four or five different burglaries in different counties in Ireland. Each of those burglary charges would have to be remanded to the particular court in that county. The solicitor would be expected to cover all that work - those separate prosecutions - for the administrative fee of €520. The solicitor's concern is that it is not simply viable.

The solicitor on those would be expected to go four different courthouses in four different counties for the same flat single fee.

Absolutely, or send staff.

This is the same scenario if an adjournment happened in the sixth instance, when the Minister would also expect that the only person in a courtroom to not be paid would be the solicitor.

Absolutely. An example I have given is that there could be up 30, 40 or 50 court appearances, believe it or not, between all those separate cases across the various counties.

I feel the words of the great and late Dolly Parton every time I see the witnesses before me, "Here You Come Again". I should say that I remain a practising barrister on the roll and I occasionally practise criminal law these days, just in case nobody heard that in the previous ten committee sessions.

My concerns remain as they have from the outset regarding vulnerable people, particularly when I think of how successful the drug courts have been in County Louth. What is the obstacle here in allowing the discretion of the judge to decide how many appearances are necessary and why it has to be fixed? I would like to hear the witnesses’ opinions on that because there are a lot of vulnerable people who need that extra time. They need more appearances to find the appropriate sentence or community service to give them what we talk about an awful lot of the time, which is rehabilitation rather than a punishment per se. That is the first comment that I ask the witnesses to address.

The second follows up a little on Deputy Gannon's point in relation to the one cert. Once again in County Louth, the criminal court sits once a week in Dundalk and once a week in Drogheda. Not for convenience but efficiency by and large, the judge sits on a Wednesday in Dundalk and hears all matters before her.

If Joe Bloggs comes in on a charge of, let us say, theft and subsequently has new charges, those charges may travel and separate, be it in different courts or stages, or be brought forward to the Circuit Court. Does the Minister seriously think that a one-size-fits-all or a one-cert-fits-all is the appropriate measure here? Deputy Gannon alluded to the fact that a solicitor could have to travel in different directions and be in different courts. A solicitor could go to Monaghan, Trim, Dundalk or Drogheda and be looking at books of evidence that require huge analysis and huge work. You might need expert witnesses or expert reports and all of this. Is that supposed to fit into the one-size-fits-all?

Considering where we are with civil legal aid, and we have not resolved this situation yet, what confidence do the witnesses have that we will be able to deal appropriately with civil legal aid when it comes before us in a matter of weeks?

The Deputy referred to the success of the drugs court. One of the problems with a flat-fee system is that certain cases that need time to come to a successful resolution, such as a case before the drugs court or the children's court, or even cases where persons who have mental health difficulties are before the courts, those classic types of cases need significant input from reports, be that probation welfare reports or social work reports, particularly in children's cases. One of the difficulties with children's cases is that some of the accused before the courts are under the care of Tusla or are living in difficult family circumstances. They may be the type of person who is prone to abscond or not turn up for meetings with particular offices that are preparing reports, so a long period of time is required for those cases to come to a successful outcome.

One of the big problems with a flat-fee system is that it does not reflect the wide variation in cases that come before the courts. Cases like those that require time for a successful outcome to arrive are not the type of cases that solicitors are likely to be incentivised to take on and they end up in certain situations. I am using civil legal aid as an example. When civil legal aid introduced a flat-fee system, the system did not erode rapidly overnight. It was a gradual erosion over time where certain types of cases, such as domestic violence or family law cases, were just not the sort of cases where if people are getting, say, €520 and there were going to be 20 or 30 remands, they were not being incentivised to take those cases on. We talk about legal deserts in those types of areas. There is a real concern that in the difficult types of cases where legal representation is particularly required that professions will not be incentivised to take on those cases. That is where the concern arises. That is a very serious concern that needs to be looked into.

In respect of the fee in civil legal aid and criminal legal aid and where it is at the moment, as an employer it is already very difficult to recruit and retain criminal defence solicitors. Under this system, if it follows the same trajectory as civil legal aid, where there has been a huge mass exodus from the civil legal aid panel, and if we are in a scheme now that is not economically viable to continue, there will inevitably be a mass exodus from the criminal defence panel. If that happens, then it will affect the role that we perform at the moment. We are the checks and balance system in place for An Garda Síochána, as you can see in the news at the moment. If there is a diminution in our role, in that the experienced legal practitioners who would spot things or would keep the gardaí in check are eroded and those experienced practitioners leave and go elsewhere where they will be paid for their experience, then who performs that role? What is the checks and balance system for An Garda Síochána? Who protects the individuals who are accused and protects their fundamental rights?

Everybody has a presumption of innocence. There is a preconception that everybody who is accused of a crime is guilty but there are innocent people and I have represented several who are innocent. If that is your son, daughter, brother, sister or husband who is accused of a crime they did not commit, are you not entitled to have the full force and to hold the gardaí to make sure from the very outset of the investigation they conduct their unique investigative role in a proper orderly fashion and do not tread on your right to your reputation or all of the other rights that pertain under the Constitution? That is a very dangerous prospect to have and it goes back to what Mr. Clarke said in relation to how public confidence in the criminal justice system must be maintained. My fear is that if this is brought in there will be a creep effect over years in the standard of representation and the standard of checks and balances for An Garda Síochána and the other Government bodies to ensure the level playing pitch that should be brought for someone who is accused of a crime.

As the Cathaoirleach asked his questions I was thinking of the many sessions we have had at this committee where we have listened to testimonies from victims and survivors of domestic violence and sexual assaults. One of the themes that came out of those meetings was that victims and survivors felt let down by the justice system. I want to give Mr. Collier an opportunity to expand on the Cathaoirleach's question in relation to alleged perpetrators of domestic violence who are now cross-examining witnesses in court because of the current situation. Is this happening often? Is this a new phenomenon? Was this happening at the same rate before this dispute began?

There would have been no necessity for an accused person to cross-examine an inter partes or complainant in a domestic violence case before this dispute started. There would always be solicitors representing accused persons in these situations. Given the unavailability of solicitors to represent accused persons in domestic violence offences, they are still entitled to make their own application for bail. A part of that process may involve cross-examining their complainant who is brought to court as a witness in support of a bail objection. The accused always has a right to apply for bail. An accused person, as I said, does have the right to cross-examine witnesses, especially their accuser. However, ideally it should be through a lawyer who can do that in a professional manner.

Am I right in saying that this did not happen before this dispute began? I mean where somebody who has been accused of domestic violence, sexual assault or something like that, was coming into court and talking to and directly asking questions of the person who accused them of this crime?

I am not aware of any and I would be very surprised to hear of any examples.

I met with representatives of victim support groups and they are desperately worried about the situation, which will evolve to a greater extent once the higher courts start to sit in October. In fact, it is having an impact already on the people who they support and I promised them that we would try and find a resolution to this. There are two core issues that are really solvable if there is active engagement.

Will Ms Loftus expand on how she thinks this is going to be resolved?

I might let Ms Connolly deal with those because she is the practitioner on the ground.

There are two core issues in relation to the separate and distinct cases that come before the court and it is not a return to the multiple charges that the Minister keeps referring to. We have set out very clearly that it is separate and distinct cases where there are a separate set of facts, separate disclosure and separate CCTV on different days, and we have to go through that and prepare a defence. Just by virtue of the fact that it all comes to court on one day, why should a solicitor only get paid for one set of proceedings, whereas if a person is charged on separate dates then a solicitor is allowed to claim for separate offences? It does not make any sense in that respect.

The second issues relates to the cases of complexity. We have already touched on that in relation to the number of remands. It has even been accepted by the Minister that the defence is not responsible for most of the remands. In fact, the umbrella includes the Department of justice, the DPP, An Garda Síochána, the probation services and restorative justice, which are all responsible for the majority of remands. The DPP's own statistics say that they require 9.8 remands for DPP's directions. That is almost ten appearances in court, yet the Minister proposes that we are only paid for five.

Okay, and that is a solution.

Can I go back to the engagement that the Law Society of Ireland had with groups that represent victims and survivors of sexual assault and domestic violence? What are their concerns and how worried are they?

They are extremely worried. In reality, it is in the very serious cases such as sexual assault. They feel that the rape victims - who are obviously entitled to have their case prosecuted in a prompt manner - are regurgitating the anxiety they have based on the fact that the case is adjourned each time and that it will continue into the future indefinitely because it has not been addressed and the higher courts will be sitting in October.

I do not want to go over questions already asked but we have a judicial review coming down the line and the Minister has said he has to wait for that now. To be honest, I work on a street covered with solicitors in Nenagh and have had a range of solicitors on to me and I have listened to them. Regarding political issues that are hot at the moment, I am telling the witnesses straight that this is not one of them. It is just not there as one of the top ones. However, the domino impact of what is happening at the District Court is going to elevate then from October onwards. When the traumatic cases and the personal lives of people are impacted to a level that has never been seen before and when the emotional intelligence of all that gets out there, the position will change dramatically because it is affecting people in their real lives. I do not think that it has got to that level yet but it will. It is a serious concern that it will be allowed - I expect - to get to that level because it has a huge impact on ordinary people's lives who in many cases will be traumatised and suffering. Potentially there will be people who have issues that need to be dealt with and then it could have negative impacts down the line in relation to a whole range of other court cases, etc.

What do the witnesses want? I know there are the two asks, and we do not need to go through them again, but what dramatic impact do the witnesses think this committee can have or what recommendation can it make to the Minister that can flag what I have just outlined and deal with it quickly? People will anecdotally say that this is about money. They will say that but I do not want to hear about the two items again because I have heard them ad nauseam. Where do the witnesses think that this will be by the end of October or early November?

It is not a slowdown; it is a shutdown. That is the reality on the ground. The victims and the survivors are the ones who are going to be the most impacted. Backlogs can be cleared. Solicitors will do their job and do their job well but the people on the ground who are practising are not willing to back. It is not about money. It is about fairness and a judicial system that works fairly for all.

In relation to the withdrawal of services in July just before the long vacation break, the superior courts only dealt with cases where accused persons were in custody or under the juvenile protocol. That meant that in the case of anyone who was on bail, which includes the vast majority of people who are coming before the courts, no such case was progressed. For example, if a victim turns up expecting a rape case to proceed in the Central Criminal Court, the case is not proceeding and he or she goes back into a backlog whereby he or she will be coming back before the courts on another occasion when there will be more cases before this court. The problem for victims is that they come to court looking for finality. They cannot recover and move on with their lives until this case is finalised and that is the big concern, namely, that if a bottleneck builds up in the system, we will have cases backing up behind other cases, which eventually must get dealt with down the line. For victims, the idea of having no certainty as to when their case might be dealt with is a very serious concern for them. The problem will come into sharp relief when we return back on 5 October and the only throughput going through the superior courts will involve people who are in custody and juvenile protocol cases. They are the only trials that are going to get on. Other cases where people are coming before the courts who may be considering pleading guilty will not be dealt with. They are just going to go into a backlog and create a bottleneck in the system. If this dispute continues for very much longer, we will be in a situation like the Covid-19 pandemic where when everyone came back to work there was a serious bottleneck to get through. It takes time to get through that type of work.

In addition to those awaiting trial, there are also hundreds of people who have already been convicted of criminal offences, who are listed for sentencing in July, who were on bail and had their sentence hearings adjourned into dates in October and November. If the withdrawal is continuing at that point, their sentence hearings will be adjourned again. Those are people who have already been convicted of serious crimes, including rape offences, before the Circuit Criminal Court and the Central Criminal Court and who remain in the community awaiting sentencing where their victims have yet to have had an opportunity to give their victim impact evidence and have the case finalised before the courts.

I thank the witnesses for their opening statements. I do not come from a legal background but I am concerned about the competition law issue that has arisen because of the strike. Under our competition law, all decisions and practices by associations which have as their objective or effect the prevention or the restriction of competition in respect of services in the State are prohibited. Do the witnesses have concerns that this strike may be breaking competition law? The reason I ask is because in 2009, the then Competition Authority published a serious of examples of anti-competitive boycotts and the example given was bizarrely similar to what is happening in this dispute.

I will read a little excerpt from it. It is still on the Competition and Consumer Protection Commission, CCPC, website. The sad person that I am, I enjoy going through the CCPC's website. It states:

The (fictional) Association of Criminal Legal Aid Advocates (ACLAA) is composed of self-employed legal advocates who provide services on behalf of the State to criminal defendants qualifying for legal aid. Advocates are paid a fixed fee by the State for this service. Although membership of ACLAA is not compulsory, in practice all advocates in the State are members of the association. The governing committee of ACLAA is of the view that the fixed fee paid by the State to criminal legal aid advocates is inadequate, and decides to campaign for a 25% increase. A ballot of members is conducted, which indicates that three-quarters of members are prepared to take “strike” action, by refusing to take on new cases, until a 25% increase is agreed by the Minister for Justice. After a public announcement by the Minister that an increase in fees is unjustified, ACLAA informed members that, effective immediately, they are to take on no further legal aid work from the State, pending resolution of the dispute ...

ACLAA, composed of self-employed professionals who are undertakings under competition law, is an association of undertakings. The decision of ACLAA to declare a “strike” – which is, of course, not a real strike as governed by the Industrial Relations Acts but instead a coordinated withdrawal of services by competitors – is an object restriction of competition: it is a restriction of output intended to support an attempt to fix prices. This is prohibited under competition law. Any underlying agreement or concerted practice between competing advocates to withdraw their services would also be prohibited. The section 4(2)/Article 81(3) exemption is highly unlikely to apply on the facts.

I return to my question. Anyway, it is sort of parallel. It is a little bit uncanny and I just wonder whether this strike is any different. Mr. Collier said that certain counties had returned to work. I was possibly not going to ask that question today but he said in a comment to the Chair when he asked a question that certain counties had returned to work.

That has prompted my question.

Solicitors are not compelled to work under a criminal legal aid scheme. The Minister can create a policy of criminal legal aid, as he has done. He had that commenced on 1 July but there is no compellability to work under that scheme at all. Solicitors withdrawing their services on an individual basis have not come together as a collective and made this agreement collectively. They have agreed on an individual basis to withdraw their services.

Was there not a Cork statement that was released at the very start of this last July?

I am not aware of the Cork statement; I am sorry. Cork?

Yes. There was a statement released from Cork.

Was it the Southern Law Association?

Perhaps, but there was a statement. It was covered in the Irish Examiner.

I can only tell the Senator that any solicitors I have dealt with decided to withdraw their services from the Minister's new legal aid model on the basis that it is not viable. The Minister did not engage with the solicitors' profession. It is not a situation with the example the Senator has given where the solicitors have come together to seek a price increase or an increase in the price of fees. There was a legal aid model in place at the time and the Minister then implemented or introduced a new legal aid model. He did so on foot of a report from the Department of justice. We have sought the data from that report, in particular in relation to the accusation that defence solicitors were adjourning cases for their own gain. We still have not received the data from that report. The Minister subsequently resiled from that position and then in a news interview, when he was asked what the proportion of applications for adjournments made by the defence solicitor as opposed to the prosecution solicitor was, he did not know the answer and picked a figure out of the sky saying 50:50. There is a policy that is in place now. In relation to that report as well, not one criminal defence solicitor was interviewed. The Minister also said last week in the Dáil that he has very few levers in order to introduce reforms in the District Court. We are here to protect the integrity of the District Court system. The Minister is attacking it. He is removing the discretion of judges around granting legal aid. He said that he has no levers.

I-----

Just one moment, Senator. There-----

Be mindful, please. You are over time.

There are a number of stakeholders in the criminal justice system and particularly in the District Court. They include the Courts Service, the Judiciary, An Garda Síochána, the Office of the Director of Public Prosecutions, criminal defence solicitors, probation services and restorative justice services. I am sure there are more. If the Minister wants reform, we are happy to engage with reform. There is no difficulty with that. This will not bring about reform to the District Court system.

I thank Mr. Collier.

Can I just come in on one point, if the Chair does not mind?

Briefly, please.

I thank the Chair. I appreciate Mr. Collier answering.

One of Ms Loftus's comments in her contribution was that it is not a slowdown; it is a shutdown. That to me suggests there is a collective gathering or collective consensus of a slowdown within the system from within the profession.

If Ms Loftus wants to answer that, I will ask her to be brief, please.

Senator-----

Maybe I picked Ms Loftus up wrong.

What I am talking about is the fact that practitioners, as individuals on the ground, have chosen not to practise because of the fact that it has been unworkable and unfair. They have chosen that themselves. The Law Society is here to support, give information and come to a solution and negotiate on behalf of the profession. In reality, when I say there is a slowdown, the slowdown has already started. The shutdown is going to occur when the higher courts start to sit in October because as far as people are concerned on the ground as individuals, they have chosen not to go back and they still have not gone back. While there are banded figures of people going back in certain areas, it is very limited. The statistics and data from the Courts Service showing the number of certificates that have been issued speaks volumes.

I am going to move on.

It goes without saying that most of us want this to be resolved. Deputy Butterly said that the carpets are fairly worn with people coming in from the legal profession. We have so many other things we could be talking about. I am not saying this is not important. This needs to be resolved, of course, and we all want to see a genuine resolution to it.

The witnesses are speaking to somebody who is not legally trained. I am a schoolteacher. Some of my questions are basically just asking for clarification as much as anything. I am referring to the Minister's letter to the Law Society of Ireland on 15 September, which stated that since the new system commenced on 1 July 2026, 75% of the cases concluded with one appearance only in court and 99% of concluded cases were finalised within five appearances. That is under the new guidelines. Can Ms Loftus clarify that for me first of all?

That is another example of selective use of data because we have not seen the data behind that assertion the Minister made. In relation to offences dealt with on the first day, we do not know the nature of that offence. There is a huge difference between a person being prosecuted for driving while holding a mobile phone and a person being charged with a sexual assault. It is like what Mr. Clarke said earlier; we cannot compare like with like. We cannot overly simplify a system and compare a driving offence with an offence of sexual assault. It again goes back to the level of complexity in preparation for the case and the data behind cases. I had a case where a young person was charged with sexual assault. On viewing the CCTV, which we had to request several times to get it in workable format, it turned out it was not a sexual assault. We had to then plead not guilty, then go to trial. It went over ten appearances. We did not request them. He was-----

Can I just ask-----

If I can just finish my point, that person, in the current system, is supposed to plead guilty and be on the sex offenders register. There are people who are innocent and they deserve to have the robust defence that a person who can afford it is entitled to because he or she can pay for it. I do not think there should be a differentiation.

I am just trying to understand the statistics and the data. Who collates that data or who would have access to that? Is it the Courts Service?

It is the Courts Service, which is under the auspices of the Minister for justice. As I said, we have asked for that data to be released and it has not-----

Is it forthcoming? Is there a reason it is not being released? Again, these might be very stupid and straightforward questions.

The Law Society has asked for it on a number of occasions. It has also asked for the data behind the study the Department of justice conducted to come about with the instigation of this system in relation to setting the figure at five appearances whereas in relation to the leaked report, it was 5.8, which would mean the average number is six. We have been privy to none of that data.

I am conscious of time now, so I will move on to my second question. Again, it is going back to the Minister's letter. I am just working off that. There was a point in relation to complex cases, including children's cases, which were mentioned earlier. He said, "I recognise that certain categories of case may warrant particular consideration and am open to making changes if that is supported by the data". Again, it comes back to our question about data.

It is the data again, yes.

The Minister continues: "I am pleased to inform you that my Department has engaged extensively with the Courts Service and we expect to receive [that] data on the operation of the Children's Court shortly." In theory, therefore, he is showing an openness to looking at that in those complex cases involving children as well. That, in essence, may provide a route to resolution. Who knows? I do not have a crystal ball, but I am assuming that is welcome.

Yes, but in relation to that, I am aware that Department of justice officials have gone to the children's court and seen first-hand the number of remands it requires in relation to dealing with the multidisciplinary approach of children's law. It is not only in relation to children law. It is in relation to mental health; people are undergoing rehabilitation treatment. People are awaiting other reports in relation to that. What I am saying is that we would like to see that data, but it does not have to be determined upon that. We do not have to wait for that data to know that those cases will not be disposed of in five remands. I have had mental health cases that required 50 remands. The president of the District Court made the Department officials aware of the complexity of those cases and expressed the concern in relation to how this system simply will not work in respect of juvenile justice.

If I could maybe strike some sort of a positive note from the part of the statement the Deputy read, the Bar of Ireland is somewhat more objective in relation to some aspects of the letter because, obviously, the scheme is about fees for District Court payments, which are for solicitors primarily.

I take some comfort that there is an openness in that letter to at least looking at some of the data in relation to more complex cases and perhaps that is an opportunity - and the sooner the better - to have negotiations and discussions with the various parties that are involved. We welcome any opening that allows for complex cases to be looked at, to see the types of cases that need greater care from solicitors and that would have a greater number of adjournments. Those cases need to be looked at very carefully but that is the seed of some sort of an agreement. What this dispute needs is not an escalation but a resolution. It needs a resolution because when the new legal term starts on 5 October, it is going to come into sharp relief that we could have a justice system that is not functioning effectively or as it normally does. Any opportunity, with any data that is released, will assist, hopefully, with finding some sort of resolution that will allow this dispute to be closed.

I thank our witnesses for being with us today. Myself and my colleagues all want to see the matter resolved. I am conscious that when I am speaking to the witnesses, it is about their profession and they know it inside out. They know the system. They are operating in it day in and day out. Ms Loftus said earlier that the system is unworkable but from everything I have seen over the last few months and the engagement I have had with solicitors, as soon as this was proposed there was an immediate pull back in services. How did solicitors confirm to themselves that it was unworkable, given that they had never tried the flat fee?

First and foremost, the Law Society has been looking for reform in the system for years. The realities are that we welcome efficiency and the fact that we do not have to be ten times in court because there is no report from forensics, a probation officer or whatever. When it comes to the actual unworkability of the scheme, practitioners on the ground are used to it. I personally do not practice in criminal law but I know the questions that they all ask and why they say it is not workable. It is unworkable in so many areas and we have pointed specifically to multiple cases involving an accused who has been in several areas where there were several crimes that they have allegedly committed. We also have the complexity around children, mental health and so on, as already outlined by Mr. Clarke and Ms Connolly. When one looks at that, and that alone, how can it be determined that for a fixed fee of €520, a solicitor is expected to work for an undetermined amount of time and court appearances? Why should we accept the one fee for an indeterminate amount of work?

I hope that people can appreciate that efficiency is where the Minister was coming from with this. We can see from the figures the balloon that occurred in terms of the sheer volume of money that was being put towards criminal legal aid. I am not suggesting that one can put a cap on the criminal legal aid spend but what I am trying to get at is that there were structural issues. Is there a willingness within the legal community to try the legal aid flat fee structure, given that the Minister got the restoration of fees and has now increased the fee to €520 and has also split the fee so that it is not just one fee, but a start fee and then an end fee? The Minister has done a few things to try to bridge the gap to get it to a place where the legal community can trial this but it seems that the heels are dug in and there is no let up.

Just to go back to one thing the Deputy said there, the Minister has not implemented the split fee that he said he would. A statutory instrument forms the basis for claiming payment for legal aid, which to refer to something that was said earlier, is not something that solicitors do on behalf of the State. We do it on behalf of our clients and claim payment from the State. At the moment, the payment scheme that exists is the original payment scheme that the Minister stated he was implementing. He has not amended it, despite saying he would do so.

That is something I would have called for here previously. I can understand the frustration if somebody takes on a case and the client then goes off to another solicitor. I understand that. Can I ask-----

It is precisely that experience, that every practitioner has had, which led to the suggestion of a split fee. It is also precisely the experience of practitioners who have been doing the job for ten, 20 or 30 years, when they say they have been in court over double-figures appearances, none of which they asked for and under this new scheme, they are being asked to turn up for free after appearance number five.

Yes but is it not fair to say also that there would be times when they would arrive into court and there would be only that one appearance and they would get the full €520 for one appearance?

That does happen, but rarely.

Let us say they do ten cases, five of which will involve two, three or four appearances but the other five could involve six, seven or eight appearances. The whole purpose of the scheme is that on average, the number of appearances comes out at five and this new payment scheme is going to pay them more than five appearances.

The Deputy is talking about something which, with respect, is an assumption about how cases actually work. The one thing that the Deputy may not know is that when criminal practitioners turn up in court they have to ask the judge for the disclosure material in the case upon which they will base their advice for the defence. Every practitioner has had the experience of trying to write to gardaí in advance of a hearing in court and asking for the paperwork so they can get ahead of the game but there is never a response. This very reform was suggested by a very experienced colleague to the Minister, face to face, at a meeting. If he wants reforms, if he wants things that will really make a difference, we will give him ideas until he is choking on them. We will not give him an idea that is a flat fee, no exceptions, considerations, allowances or room for manoeuvre because that is not the criminal justice system. The Deputy does not have to take my word for it; if he looks at the jurisdiction of the North or of England and Wales, he will see exactly how they approach it. It is incremental, there are allowances and applications that can be made because it is recognised that one size does not fit all.

Thank you. I am conscious that we are very tight on time. Deputy Ward, who is not a member of this committee, has had the patience to sit through our deliberations so far so I will open the floor to him now.

Thank you, a Chathaoirligh. I appreciate being accommodated as a non-member. I want to say at the outset that I am a practising barrister. I practice in criminal law and I receive legal aid. This is not a revelation. I say it every time I speak on this topic. I have a question for all of the witnesses. This morning I heard a statement on RTÉ from the Minister that the criminal courts are working effectively. Does anyone believe there is a basis in truth for that statement?

.That is certainly not my experience. I am aware of being in court - or often at the moment, not being in court - and cases are being adjourned and no action is being taken. The DPP's directions are not being given, books of evidence are not being served, people are not being sentenced, people are not pleading guilty. The vast majority of cases are simply being remanded, with no progress being made in the case.

Have the witnesses done any analysis on the impact this is having on remand places in prisons or on the progress of cases that have not yet come to court? For example, are they aware of gardaí being delayed in bringing cases to court in any way?

I know that there are very senior gardaí within the Dublin metropolitan district who are withholding certain operations because they are afraid that the lack of availability of a chosen or specific lawyer when a person goes into Garda custody may have ramifications for any trial that follows in the future. These are very serious allegations. Therefore, those operations, which probably took up a lot of Garda resources, time and effort, are basically placed on hold. One never knows in our profession or their line of business but I fear that something catastrophic might happen in relation to that. I hope it does not but it is, unfortunately, a real prospect in the context of the way we work.

In the context of these hearings today, for example, reference has been made to the Minister's attempt to bring efficiency to the process. I ask the witnesses to comment on that, particularly in light of the fact that people are saying there has been a ballooning or increase in legal aid payments. Can they account for why that was the case?

I can say that I set up our business in 2008 and in that year we got paid the same amount of money for remand as the amount that has just been restored, after FEMPI, in 2026.

Therefore, almost 20 years later, we expect to run a business with the overheads, staff increases and all of the other increases on the same basis that existed 20 years ago, despite the cost of living. There is no other business that has been expected to do that.

As I understand it, and it is not an exact figure, the criminal legal aid scheme dealing with solicitors' payments accounts for about 1% of the Department of justice budget for 2025. The State receives excellent value for money. Behind every criminal defence solicitor is an office and the very dedicated staff in that office. Criminal defence solicitors have a very important function within the court system. We have always been open to reforms to the system. As I said earlier, the system is made up of a number of stakeholders. We would welcome the opportunity to sit down with the Department of justice and other stakeholders to bring about reforms and efficiencies. The legal aid figures are demand-driven. It depends on how many cases are before the courts. Solicitors do not drive the demand for what people are charged with or the levels of crime in society.

The climate has become more complex with the onset of technology, data, mobile evidence and forensic evidence. Such things did not exist 15 or 20 years ago, and therefore, it has become much more complex, and the need on the system is greater.

I have one more question. Mr. Finucane made reference to England, Wales and other common law jurisdictions where similar legal aid systems exist. Do the witnesses have a comparison for the cost per capita, for example, in those jurisdictions compared to Ireland, or do they know how they compare for value for money for the taxpayer?

The Council of Europe has a commission that deals with these issues. Every time it reports, even most recently, Ireland compares favourably to other northern European jurisdictions. We are either at the same level or slightly better than those countries. They are the proper comparators. We are not like a civil law jurisdiction, where the state is more involved in the processing of cases. The common law jurisdiction relies on advocates to be involved in an adversarial system. The Irish system, as it existed before 1 July, compared favourably with other jurisdictions. It was either better or pretty much the same as the European system.

Does better mean less expensive?

Yes, less expensive.

In relation to the different increments that are paid for different things within the criminal system, my review of it in advance of today’s hearing indicated that the amounts paid are broadly similar. What you get paid for a particular piece of work does not really differ that much between, say, the North or England, although perhaps slightly. There is a slight incremental increase for London, which is pretty standard for England and Wales. However, what is stark is that different fees are payable for different things. If you write a letter, you get paid for it. If you do a bail application, you get paid for it. If you do a sentencing hearing, you get paid for it.

That is in other jurisdictions.

It is in England, Wales and the North. To refer to Deputy Dolan’s earlier question, there are situations where someone can come and get something finished quickly because the case lends itself to that. What we are saying is that where it does not lend itself to that, people are effectively expected to invest huge amounts of time and energy for no payment. It is not about getting rich. It is about how do I fund this office that I am sitting in, how do I pay the staff and how do I pay for the systems, all of which the state relies on. As I am sure the members know, you come into court with a copy of a document. You are expected to copy that and provide it to the court and to everybody else involved in the case. It is those little things that you are expected to do in order to discharge your function properly that add up in terms of cost. All of that could, frankly, be demonstrated to a Minister who was willing to listen.

We will give Mr. Finucane the last word on that. My apologies, but we do not have time for a second round. As members know, the committee has agreed to facilitate the Minister at his earliest convenience, and if that transpires, we may be inviting some of our guests back again. I propose that we publish the opening statements on the committee’s website. Is that agreed? Agreed. In conclusion, on behalf of the committee, I thank the witnesses sincerely for taking part in today’s meeting. I again extend our best wishes to Dr. Shane McCarthy and wish him a speedy recovery.

Is it agreed that we go into private session to deal with a couple of housekeeping matters? Agreed.