Criminal barristers’ strike: what’s behind first-ever action and how courts will be affected

It is not possible to say how many criminal cases will be affected by Tuesday’s withdrawal of services by barristers, the Courts Service has said.

In the absence of legal representatives for any reason, it is open to each court and judge to adjourn a matter to another date, said a spokesman.

“Representation by barristers varies across court jurisdiction and law type and it is not possible to say how many cases may be impacted if a withdrawal of services proceeds.”

A number of high-profile cases are due before the courts as they resume their work on Tuesday and could be affected.

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One-day stoppage

The Law Society, which represents solicitors, has issued statements supportive of the position taken by the barristers, but has not gone so far as to call publicly on their members to join the one-day strike organised by the Bar Council.

“Legal aid rates, for solicitors and barristers, were cut significantly in 2008 and again in later years due to budgetary constraints,” said chairman of the society’s criminal law committee John O’Doherty on Monday.

“However, despite the passing of a significant period of time and the increasing complexity of criminal legal work, as well as inflation, these rates have still not been reviewed — the only part of the public sector not to have pay cuts reinstated.”

Criminal law committee member Emer O’Sullivan said a lot of criminal law solicitors would be joining the protest on Tuesday. “As things stand criminal defence solicitors are still working below 2002 rates of pay at District Court level. In 2002 they received €217 for a first-day fee per case in the District Court. Today they receive €201.”

[ Inverted snobbery behind impasse on barristers’ fees - head of Bar Council ]

[ 'We can’t survive on these fees, in reality it’s justice on the cheap' ]

Reversal of the cuts has been supported by the Minister for Justice and the Director of Public Prosecutions since 2018 and barristers believe the stumbling block to restoration is the Department of Public Expenditure and Reform.

Barrister Siobhán Ní Chúlacháin SC said there was widespread support for the strike among barristers. When she joined the Law Library in 1999, she was paid more than she is paid now. “Every other service I go to, doctors, even the hairdresser, is a lot more expensive. We’re stuck, really”, she said.

“If the issue of barrister fee restoration is not addressed, it will undoubtedly have a profound effect on the administration of justice and the application of the rule of law,” chairwoman of the Bar Council Sara Phelan SC is to tell the Oireachtas justice committee on Tuesday, when it sits to consider the Criminal Law (Legal Aid) Bill 2023.

Criminal law

The diminishing numbers of barristers practising criminal law will have a growing adverse impact on the ability of the State to prosecute cases, vindicate the rights of victims of crime, ensure the proper defence of cases, and vindicate the rights of accused persons to have their innocence or guilt determined, she is to say in an opening statement.

“The council greatly regrets having to pursue today’s course of action and is acutely conscious that the disruption caused will impact on victims of crime, those accused of criminal offences, juries and other stakeholders involved in the administration of criminal justice.”

In his opening statement to the committee, barrister Darren Lalor will say he would like to see a mechanism for barristers practising at District Court level to get paid directly rather than “waiting to be paid by your instructing solicitor, and in many instances, hoping in vain to be paid. Today I am sitting in front of the Oireachtas justice committee, cap in hand, asking to be considered to be paid directly by the State for work done on behalf of the State — a fair day’s pay for a fair day’s work — I think I am worth it.”