First, I wish to thank Deputy Quill for her good wishes. She mentioned I have not been very long in this office — about three hours. The provision of civil and criminal legal aid, not just in the Cork area but all over the country, is a matter in which I have had a great interest. Deputy Quill said that if this was a nationwide problem immediate steps would be taken to resolve it. What is being overlooked is that it is a nationwide problem, but there are particular problems in Cork to which I will refer.
The difficulties which have arisen in Cork city as a result of the withdrawal by solicitors there from the operation of the criminal legal aid scheme are a cause of grave concern to me, a concern which no doubt is shared by all right thinking people who are acquainted with the situation. The position is that in any criminal case where the accused is entitled to free legal aid he is not being remanded in custody, nor is his trial being processed because of an absence of legal representation. I am only too well aware of the difficulties this has created for those charged with law enforcement and for the officers of the court. Deputy Quill adverted to the concern articulated by responsible citizens in Cork. I am also very conscious of the concern that this situation is giving rise to among the law-abiding community in Cork.
Before addressing the problem I want to outline for the benefit of the House the manner in which the criminal legal aid system operates. This I consider essential to a proper understanding of the situation. In certain circumstances free legal aid is granted under the Criminal Justice (Legal Aid) Act, 1962, and the regulations made under that Act for the defence of persons of insufficient means in criminal proceedings. The grant of legal aid entitles the applicant to the services of a solicitor and, where appropriate, counsel, in the preparation and conduct of his defence or appeal. Fees and expenses totalling £3.152 million were paid in 1991 in respect of criminal legal aid. The 1992 allocation is £3,870 million, an increase of 22 per cent over 1991.
The assignment of a solicitor to a successful applicant is a matter for the court granting the free legal aid. Such an assignment is normally made from a panel of solicitors who have indicated their willingness to undertake legal aid work. Where the assistance of counsel is allowed, the solicitor assigned may instruct any member of the Bar whose name is included in a similar panel of counsel.
As regards the fees paid under the scheme, the remuneration of solicitors for legal aid cases in the District Court and for appeals from the District Court to the Circuit Court is controlled by way of regulations which the Minister for Justice is empowered to make under the 1962 Act. The fees of solicitors and counsel in the higher courts are determined entirely by the fees which the Director of Public Prosecutions pays to prosecution counsel, through parity agreements introduced by way of regulations in 1976 and 1978. Changes in the scale of fees paid to lawyers under the scheme and changes in the scheme itself involve my Department in consultation with the Incorporated Law Society and with the Bar Council, whose members operate the scheme.
The most recent increase in fees to solicitors for cases heard in the District Court and cases appealed from the District Court to the Circuit Court was introduced with effect from 1 January 1991. Also, for cases heard in the Circuit and Higher Courts — cases that begin in the Circuit Court or in the Central Criminal Court — solicitors received two very significant increases in fees in 1991 following negotiations which took place between the Bar Council and the Director of Public Prosecutions. There is a fixed relationship between the fee paid to counsel and the fee paid to solicitors for cases in the Circuit or higher courts. These increases took effect from 1 April 1991 and from 1 October 1991.
With regard to the difficulties in the Cork area these first arose when the Southern Law Association decided unilaterally that unless a fee structure in line with the minimum scale recommended by them — the Southern Law Association — was put in place on or before 30 September 1991, all members of the legal aid panel in Cork would resign from the panel. They communicated that decision to my predecessor in a letter dated 9 September and on 30 September, having given a three week ultimatum, they went ahead with their action, notwithstanding an exchange of letters between the Minister's private secretary and the association in which the association were advised that in matters relating to the participation of solicitors in the criminal legal aid scheme my Department negotiate with the Incorporated Law Society, which represents all solicitors on free legal aid panels. It was suggested that they should make their views known to the society, which they did. Prior to 9 September there had been no suggestion from any organisation that solicitors were dissatisfied with the scale of fees which applied to them.
The response of my Department to a request from the Law Society for a meeting to discuss the level of fees was positive. The meeting was delayed at the request of the Law Society while it was formulating the claim. It was not delayed through inaction on the Department's part. That society presented their claim at a meeting which took place today in my Department.
I find the position adopted by the Southern Law Association in this sad affair difficult to comprehend for a number of reasons. First, the association represent only a portion of the solicitors in this State and in matters such as remuneration, which affects all solicitors, it is clearly in accord with normal industrial relations practices for claims to be lodged and processed by the representative body for all solicitors, that is, the Incorporated Law Society, which also exercise a statutory role in relation to solicitors in the State. I mention that because the role is about to be enhanced under the solicitors' Bill, shortly to be introduced. On all occasions in the past it is with the Law Society that the Department negotiated in such matters and the Law Society have not relinquished their negotiating status. It would be impossible for my Department to negotiate with a purely local group on a matter of this kind, thereby bypassing their normal representative body.
Second, the letter of 9 September from the Southern Law Association did not constitute a request to enter into negotiations on a matter that was causing their membership some concern. It was couched in terms that could only be described as a virtual ultimatum to my predecessor to accept their demands or else, within a short few weeks, they would withdraw their services. That is not the manner of conduct I would expect from a highly esteemed professional body.
Third, although the Southern Law Association did bring the matter to the attention of the Law Society as was suggested to them, they nevertheless adhered to the timescale contained in their ultimatum. Accordingly, with effect from 30 September 1991, solicitors in Cork city refused to handle criminal legal aid cases. They persisted in their action notwithstanding the difficulties this has created for the operation of the courts in Cork city and the impact it has had and continues to have on law enforcement in the area. The Law Society have kept the Cork solicitors fully advised of the position with regard to the society's submission seeking a substantial increase in fees but so far this has failed to achieve a resumption of services.
It would appear that, notwithstanding the positive developments of which the association were and are aware, the Cork solicitors do not intend recommencing legal aid work until there is agreement on a substantial increase in fees. There is no statutory authority which would enable my Department to compel them to do so and, even if there were, I am not sure that that would be the best way to proceed.
Therefore, I appeal to the solicitors in Cork, even at this late stage, to have regard to the damage which their action is doing to the standing of the law in the eyes of the law-abiding community in their city and to the concern they are causing to that community. I ask them to help restore normality to the situation there by resuming legal aid work pending the outcome of the negotiations which are ongoing between my Department and the Incorporated Law Society.
I reiterate what I said earlier. The meeting between the Law Society, which was delayed at the instance of the Law Society, and my Department took place in the Department today, so, hopefully, there will be progress. I appeal to the Southern Law Association not to take it upon themselves to negotiate criminal legal aid fees. That cannot be done; there is a representative body which does this on their behalf. That representative body is now proceeding to negotiate and perhaps the local Oireachtas Members in the Cork area would use their good offices to persuade them to do this.
