Simon Donagh BL: The work we do matters

Simon Donagh BL: The work we do matters

Simon Donagh BL

Simon Donagh BL, chair of the Irish Criminal Bar Association, writes for Irish Legal News on today’s withdrawal of services by criminal barristers.

Practising in criminal law is an honour and privilege. Whether prosecuting or defending, the work is an important public service.

Society at large, and especially victims of crime, are entitled to have criminal prosecutions conducted by competent professionals. Anything less risks unnecessary mistrials or unmeritorious acquittals.

Accused persons too are entitled to a vigorous and competent defence. Without such a defence the risk of wrongful convictions goes up, as does the risk of a disproportionate sentence going unchecked.

Without fear of contradiction, barristers practicing in criminal law can say that the work we do matters. Important and interesting as the work is, it is — at the end of the day — work. Like all work it deserves to be properly paid. Regrettably, this government does not seem to agree.

Starting in 2008, the pay of barristers practising in criminal law was cut and cut and cut. In September 2008, an agreed 2.5 per cent increase was withheld. In March 2009 and April 2010, two eight per cent pay reductions took effect. These two cuts were imposed at the same time as the FEMPI cuts were implemented across the public sector.

In October 2011, a further 10 per cent was cut. This cut, unlike the previous two, had no equivalent to those cuts imposed on the wider public sector. It was targeted at barristers alone. Some other fees were subject to specific cuts too.

Worse still, in 2008, the government severed the link between barristers’ pay and increases under public sector pay agreements. Thus it was no longer the case that when public sector pay increased, the pay of publicly funded barristers (by way of the Office of The Director of Public Prosecutions and the Criminal Legal Aid Scheme) would also increase.

All in, this meant that pay was cut by between 28.5 per cent and 69 per cent and the convenient means of restoring it was severed.

When the FEMPI cuts began to be reversed, barristers were left behind, even though the front-line government departments agreed in July 2018 that barristers had satisfied the conditions for pay restoration. None of this even begins to take account of inflation or the ever-increasing cost of living.

Put simply, it is 2002 pay with 2024 expenses. So much for the we-are-all-in-it-together spirit behind the FEMPI cuts in the first place.

Unsurprisingly, the failure to reverse pay cuts has had its effects. Based on research undertaken by the Bar Council, two out of every three barristers leave criminal practice after just six years.

Pause to reflect on that figure. It is an enormous percentage.

It is not just unfair to those who worked hard to qualify as a barrister (which is not an inexpensive endeavour), but it will also have real and substantial consequences on the criminal justice system.

It takes years of practice and training to emerge as a skilled and experienced criminal lawyer. Without a steady and reliable number of new recruits there will be insufficient numbers to replace senior colleagues when they retire. This will damage the system and the administration of justice will suffer. Cracks are already starting to show.

One may justifiably ask why the pay cuts have not been reversed. Honestly, I cannot think of a reason. The typical answer given in a pay dispute is that any pay increase should be linked to “reform” of work practices. Two points on that. First, barristers are not looking for an increase — simply restoration in line with everybody else. Second, barristers have already cooperated with reforms and continue to do so.

It is worth quoting what the Office of the DPP said on this issue in March 2021:

“This Office has highlighted on a number of occasions the very significant flexibility delivered by counsel and their ongoing co-operation with change initiatives — flexibilities and co-operation which is comparable with that accepted as justification for pay restoration to staff employed in the criminal justice system and to restoration of State Solicitors.”

The minister for justice herself has said: “I see no good reason why those in the legal profession are left waiting for crisis era cuts to be restored, while public and civil servants have had their pay restored.”

Because “reform” is not the justification for reversing pay cuts, and the injustice of the situation has been publicly acknowledged by the minister, I and my colleagues are left dumfounded by the government’s inaction. What is the hold up?

The State can well afford it, so why then won’t the government just get on with it? After all, other professionals working in the criminal justice system have had their pay cuts reversed including solicitors and staff in the DPP’s office, judges who preside over criminal trials, and gardaí who investigate crime. This continued singling out of barristers has reached the point where it is no longer tenable.

A measure of progress was made last year when 10 per cent was restored. This followed an unprecedented day of action where barristers withdrew their services. At that time the government committed to a review process looking at the structure and level of fees paid to criminal barristers.

What happened since? Absolutely nothing. Continued failure to fully reverse pay cuts. Continued failure to re-establish the link with public sector pay increases. Failure to even establish the review mechanism promised.

It is for the above reasons that the Bar of Ireland has recommended an escalation of the withdrawal of services that occurred last October. It is highly regrettable that barristers will withdraw their service on three days in July. It remains to be seen what recommendations will be made for the new term in October.

Make no mistake, the cause for the inevitable disruption lies solely and exclusively with the government. Had barristers’ pay been restored in line with everybody else’s none of this would be necessary.

As advocates we use our voice to speak for others, but this government has forced us to speak up for ourselves.

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