High Court finds legal aid changes to be “grossly unfair”

SPEAKER_1 (0:00)

The Hard Shoulder, with Ciara Kelly and Shane Colman, on Newstalk, with Ciara.

Shane Colman (0:09)

The High Court has found that Justice Minister Jim O'Callaghan's changes to the legal aid system are grossly unfair and demonstrably illogical. We are joined now by The Irish Times Legal Affairs correspondent, Mary Carolan. It's a fairly withering verdict by Justice Mary Rose Gearty.

Mary, just explain to us the basis of her judgment.

Mary Carolan (0:33)

It is, Shane.

She made some key findings, including the fact that the minister's provision in the scheme of a single payment to a solicitor when the final order in the case is made was grossly unfair and invalid in relation to the provisions of the Criminal Legal Aid Act. She said that that excluded bench warrants to transfer cases to a different jurisdiction and various other interim orders with the result that solicitors would never be paid for the work that they had completed in such cases. Now, the minister has changed some aspects of the scheme, allowing for two-thirds of the fee to be paid at the beginning of the case and the remainder at the end of the case or after 12 months. But the judge also found that another key provision allowing for the issuing of one legal aid start at the beginning of proceedings, no matter how many charges an accused person faced or how many court appearances the case could involve was demonstrably illogical. She said that failed to create a rational system under the legislation and failed to achieve the minister's objective of curtailing abuses of the previous system. This was all done in a long 48-page detailed judgment analysing aspects of what is a complex criminal legal age scheme. So I've just touched on aspects of it.

Shane Colman (1:58)

Is it fair to describe something as grossly unfair that no longer exists because the minister has backed away from that?

Mary Carolan (2:04)

Well, it's only been partly amended. And solicitors say it still means that a lot of work they do, they will not be paid for. Now we're all aware that the minister did agree last week to embark on a process of engagement with the Law Society. Pressure has been mounting. There's been a four-month withdrawal of services. And the work of the criminal courts has been seriously disrupted. And the ministers had said at various stages he was awaiting the High Court judgment. But the views now is that the emphatic nature of that judgment means that the focused engagement that he had promised last week is likely to become even more focused. There's actually more hope of a resolution now.

Shane Colman (2:51)

The criticism by the judge, I mean, some people not from a legal background might look at that at first glance and say, is that judicial overreach? And what's the point? They may question what the point of a minister is if they can't reform a system. Whether you agree with that reform or not, surely that is the right of a minister or a government to reform a system.

Mary Carolan (3:15)

Well, judicial review is not about analysing the merits of a situation. It's about analysing the process by which it was achieved. Or the demerits, you could argue, Mary. Or the demerits.

Shane Colman (3:29)

Did the judge not analyse the demerits of the scheme?

Mary Carolan (3:36)

She didn't. She analysed the demerits of the process that the minister has engaged in. And that is the point of judicial review. Now, of course, it's open to the minister to appeal that.

And the department has indicated that an appeal is being considered. But whether or not to appeal, no decision on whether to appeal has been made. And I can't second guess what a judge decides.

Shane Colman (4:07)

This could also be overtaken by events. I mean, the talks are ongoing between the department and the Law Society. Is there hope that a compromise can be reached?

Mary Carolan (4:20)

Yes, there is. And to be fair to Solicitor, they have been looking for what they call meaningful engagement since before this new scheme was introduced on the 1st of July.

And they were arguing that we're essentially met with a take or leave it approach. And but this process that began last Friday does seem to have, to involve meaningful engagement. And there is pressure on both sides. Solicitors haven't been paid for four months now. Both sides agree there is a need for reform from the Legal Aid system. There was indications that some Solicitors were abusing the system in the form of multiple, seeking multiple payments. And that was one of the concerns of the Minister, including the fact that the spend on criminal legal aid in the district courts rose from 19 million in 2015 to about 41 million last year.