Government Policy and its Impact at the Bar

Note: This article was originally published in The Bar Review, Volume 26 Number 6.

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Throughout the course of the last decade, the advent of the Legal Services Regulation Act was viewed as one of the biggest disruptors to the legal profession in Ireland. A decade on since formation of the new independent legal services regulator was first mooted, a recent survey of members of the Law Library suggested that the majority of members believe that the LSRA has improved standards in the provision of legal services since it was established, but that it is too early to comment on the overall impact of its introduction.

While the impact of the LSRA on the provision of legal services and the profession will take some time to play out, there are a range of other policy matters that are now coming to the fore where the profession will have a significant interest in their development and implementation.  This article provides a high-level overview of those policy areas that will undoubtedly impact on the profession the coming years.

Department of Justice Action Plan 2021

Earlier this year, the Department of Justice launched their first annual action plan^[1] – to be updated every year – with over 200 actions for implementation.  Its five overarching goals are to:

• tackle crime, enhance national security and transform policing;
• improve access to justice and modernise the courts system;
• strengthen community safety, reduce reoffending, support victims, and combat domestic, sexual and gender-based violence;
• deliver a fair immigration system for a digital age; and,
• accelerate innovation, digital transformation and climate action across the justice sector.

The actions to which the Department of Justice has committed where the Bar has an immediate interest include:

Review of the Civil Legal Aid Scheme

This is due to commence shortly and will consider proposals for reform across a variety of areas, including financial eligibility. The Scheme supports those in need of legal advice and representation who do not have the financial means to access same. Such a review has been long sought by The Bar of Ireland, among many others, and is a welcome development.

Implementation of the Report of the Review of Administration of Civil Justice (Kelly Report)

While this Report was published some time ago (December 2020), a plan for implementing the recommendations set out in the Report is expected before the year end.  There are in excess of 90 recommendations in the Kelly Report, many of which have the potential to improve many aspects of the civil justice system that will undoubtedly contribute to creating efficiencies and lowering costs. It is expected that a focus on Judicial Review and Discovery will be prioritised in the implementation plan. Justice Plan 2021 states:

Legal costs in Ireland are prohibitive and act as a barrier to people to exercising their rights before the courts. We know too the effect these high costs and complex systems have on our economy and our competitiveness, whether those are the cost of buying a house, enforcing a contract or purchasing insurance. The introduction of new scales of legal costs will bring down such costs and provide greater certainty on what people can expect to pay for legal services. We will assess if these scales should be binding, except in limited circumstances.^[2]

Chapter 9 of the Kelly Report addresses litigation costs^[3] and notes that the Review Group had examined various options by means of which the mandate given to it to recommend a reduction in levels of litigation costs might be achieved.  However, the Group was unable to reach a consensus regarding recommendations on how to reduce litigation costs. A majority of the Group members recommended the drawing up of non-binding guidelines for costs levels, while a minority of Group members recommended a table of maximum costs levels be prescribed by a new Litigation Costs Committee, which could be derogated from in exceptional circumstances.

Notwithstanding the majority recommendation of the Review Group, the Justice Action Plan goes on to state that work will commence ‘to introduce new scales of legal costs which would be independently drawn up, in order to reduce legal costs and to provide greater certainty to the users of legal services in relation to cost.’  The Department will ‘complete a detailed examination of the recommendations contained within the Peter Kelly report on legal costs. As part of this work, we will carry out a detailed economic and legal evaluation, which will include examining making such scales binding, except where both parties agree to opt out’.  The Bar of Ireland will seek to be consulted as part of this evaluation process when commenced.

Implementation of the O’Malley Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences

This publication, which is welcomed by The Bar of Ireland, recommended that:

’all solicitors and barristers whose work involves interaction with victims of sexual crime should receive special training. It is clearly not necessary that all legal practitioners should receive such training, as many will not be engaged in criminal law practice. At a minimum, it is desirable that all practising lawyers dealing with sexual offence cases should undergo a foundational course of training and that all should have completed it by a date to be agreed with the two professional bodies – the Law Society and the Bar Council. We recommend that the completion date should be not later than the beginning of the legal year 2021-2022, but preferably sooner. It is further recommended that each such practitioner should be required to earn a certain number of CPD points in that specific area on a regular basis, say every two years. The foundational course should require attendance at a prescribed number of seminars delivered by appropriate specialists. The subject matter of these seminars should include dealing with vulnerable witnesses in court (with a special emphasis on the questioning of such witnesses), obtaining the best evidence from vulnerable witnesses and the dangers associated with stereotyping of victims of sexual crime. As in the case of judicial studies, it is strongly recommended that some at least of the seminars on this foundational course should be delivered by counsellors, probation officers and also by professionals from other jurisdictions that already have well-established training systems of this kind.

Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences

Delivery of multi-disciplinary training, as set out by the O’Malley Report, through our comprehensive Continuous Professional Development programme, and in particular, our Advanced Advocacy Training for members of the Law Library is already well underway. 

Family law reform

This includes the establishment of a new Family Courts System where the aim is to greatly modernise the family justice system and expedite court proceedings for those whose experiencing delays. Under the new National Development Plan 2021-2030, funding has been secured for a family law complex on Hammond Lane in Dublin.  Development of the draft Family Law Justice Strategy is already underway and is expected to be published in February 2022 along with a new Bill.  The Bar of Ireland has made a number of submissions and has participated in a range of consultative groups to input into this new family law strategy.

Judicial numbers and skills review

A commitment made in the Programme for Government to review the numbers and types of judges needed to ensure the efficient administration of justice over the next five years is already underway.  This review will be looking at the need for specialist skills, the impact of Covid-19, and the extent to which efficiencies in case management and working practices could help in meeting additional service demands and/or improving services and access to justice.  The Department of Justice has engaged the OECD to conduct research on judicial resourcing in Ireland that will include an assessment of the workload of the courts.

The Council made a submission to the Judicial Planning Working Group in July 2021.  One of the key points highlighted in that submission is that the number of judges per inhabitant in Ireland remains the lowest in the EU, which has an impact on the efficiency of the Irish justice system:

The justice system budget and the number of judges remain below EU average. While the budget per capita for the justice system, which was EUR 55.7 in 2018, has constantly increased in the last years, the budget as a percentage of GDP has stagnated.^[4]

This trend is still reflected in the most recent EU Justice Scoreboard published on 8 July 2021^[5].

Review of Defamation Act 2009

The Defamation Act 2009 has been undergoing statutory review by the Department of Justice for five years, which is to result in a report of proposed amendments within the next few months. The Department’s stated aim is ‘to ensure a balanced approach to the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice’. Preparation of a general scheme of a new defamation law will follow the report’s publication.

The Council made a submission to the Department of Justice in respect of this review in 2016. There has been significant criticism of the current law, not only from media interests but also negative commentary from the European Commission. It is anticipated that the proposals from the Department will seek to address difficulties and concerns in relation to a number procedural issues including the “offer of amends” procedure which is perceived as being ineffective. More fundamentally and controversially there have been loud calls from certain quarters for the removal of juries in defamation cases and it is anticipated that the proposed amendments will make recommendations in this regard. The Council established a working group earlier this year for the purpose of drafting a position paper to aid our engagement with the Scheme of Defamation (Amendment) Bill that is due to be published in the coming months.

Courts Service Modernisation Programme

The Court Service recently established a Courts Service Modernisation Programme Legal Practitioners Engagement Working Group that includes representatives of the Council for the purpose of acting as a ‘key collaborator with the Courts Service in progressing the Modernisation Programme of Work as part of the delivery of the Courts Service Strategic Vision 2030’.  High on the agenda of the working group is the family reform programme, the civil reform programme and ICT.

The role of the working group is to:

provide advice and identify subject matter experts/members of the wider legal community to provide feedback and engagement on Modernisation Programme initiatives and change projects from a legal practitioner perspective, to act as a sounding board on proposed improvements and Modernisation Programme activities, to keep colleagues informed and encourage adoption of proposed changes and promote the broader reform activities and benefits with colleagues within the legal profession, the Justice Sector and wider civil society and identify potential shared common areas for reform and act as champions for change and help drive engagement for future reforms within the wider legal professional community.

The profession has an important role to play in this process.  The Council representatives on this working group will work on behalf of members to ensure that the Courts Service modernisation programme has regard to the views of practitioners.  This will require a high level of continuous proactive engagement from the Council representatives.

Changes to the education of legal practitioners

In November 2020, the LSRA issued a report, Setting Standards: Legal Practitioner Education and Training^[6], on implementing standards for legal education and training. This report proposes a new statutory framework for the education of lawyers, which would be overseen by a Legal Practitioners Education and Training Committee (LPET Committee). The framework envisages more structures for both professions’ CPDs as well as an overarching Competency Framework for entry to practice.  The Justice Action Plan notes the intention to ‘publish an implementation plan to give effect to the LSRA Report on the training of legal professionals and commence implementation’ before the year end.

Our primary focus as we move forward is that of our educational offerings available through the Bar’s Continuing Professional Development (CPD) programme. Having consulted stakeholders in education and training on this, the Bar continues to determine how we can effectively quality manage and impart our professional standards both before and upon entry to the profession. Ensuring what we teach and how we teach it is fit for purpose to protect the consumer is key.  The Bar of Ireland is also in the process of preparing our CPD offerings to be ready to allow us as an organisation to attain the accredited status from the LSRA when available. Quality assurance markers include learning management systems, needs assessments, valuation of our programmes, and feeding into a continuous improvement type of model of providing service.

Access to the profession

In May 2021, the LSRA commenced a public consultation under section 34(1)(d) of the Legal Services Regulation Act 2015 as part of its preparation of a report to the Minister for Justice who requested the Authority to ‘consider the economic and other barriers faced by young barristers and solicitors following their qualification from the King’s Inns and Law Society respectively and to submit a report with recommendations for her consideration’.  In making her request to the LSRA at the time, Minister Helen McEntee stated that this research was part of her plan to increase diversity across the justice sector including the legal professions. The LSRA has been asked to pay particular attention to equity of access and entry into the legal professions and the objective of achieving greater diversity within the professions, and to make recommendations for change.  The Minister asked the Authority to examine:

• The remuneration of trainee barristers and solicitors;
• The other costs associated with joining each profession;
• The information available to prospective trainee barristers and solicitors on available masters and solicitors firms; the information available on the terms and conditions available, and how they are selected;
• Any other barriers faced by young barristers and solicitors, including the ability to take maternity leave.

In June 2021, the Council made a submission^[7] in response to this consultation and the Council put forward eleven recommendations throughout the course of the submission that would address the challenges in building and maintaining a career at the Bar and support the goal of achieving greater diversity within the profession.  Engagement with the LSRA on this report will continue in the months ahead.

Funding the Administration of Criminal Justice

Since 2016, the Council of The Bar of Ireland, through the Criminal State Bar Committee, has been engaging with Government in relation to a process to unwind professional fee cuts that were imposed on barristers who provided services to prosecute and defend cases throughout the criminal courts during the period 2008-2011. Up until 2008, the professional fees paid to criminal barristers were linked to the increases applied under public sector pay agreements. All other groups of workers who were subjected to the emergency cuts throughout the justice system have since had their cuts reversed and no other group of workers in the State is having to endure pay rates at 2002 levels.

As a direct consequence of the deep cuts ranging from 28.5% – 69% that were applied to the professional fees paid to criminal barristers during the period 2008 – 2011, a career choice for recently qualified junior barristers in crime has become unattractive when compared to opportunities in other areas of law.  The evidence shows that two thirds of barristers who commence a career in criminal law leave after only 6 years in practice and that this is as a direct consequence of the deep cuts that were applied during the FEMPI years.  A skilled and experienced criminal prosecution bar can only emerge after many years of practice in the junior ranks of criminal defence law.  It takes many years of practice at the Bar to acquire the necessary experience to effectively and skilfully prosecute serious cases on behalf of the State and it is imperative that newly qualified talented barristers are encouraged to practice in the area of criminal law.  One significant form of such encouragement is to be fairly and reasonably rewarded for their services. 

Both the Office of the Director of Public Prosecutions (DPP) and the Department of Justice have each indicated their support for such fee restoration since July 2018. Unfortunately, the Department of Public Expenditure and Reform has resisted any meaningful and constructive engagement over the last five years. In May 2021, the Criminal State Bar Committee mounted a lobbying campaign with elected representatives to have this matter addressed at a political level. A series of meetings took place with justice spokespersons and media were briefed on this issue, resulting in coverage in the national press and broadcast media. To date, the Minister for Public Expenditure & Reform has not facilitated a meeting with the profession and there was no provision made in Budget 2022 to restore the fee cuts.  The Criminal State Bar Committee will continue its campaign to address the professional fees paid to barristers who provide services to prosecute and defend cases throughout the criminal courts.

Ireland for Law – an opportunity for growth of the Irish legal sector

Ireland for Law is the Irish Government’s international legal services strategy.  The strategy has been created to represent and position Ireland’s international legal services industry and seeks to promote Irish Law and Irish Legal Services to the international business community, particularly in areas where Ireland is already a world leader, including aviation finance, funds, insurance, tech, pharma and life sciences.

Ireland is now the leading English-speaking common-law jurisdiction in the EU. Following Brexit, businesses have come to recognise the benefits of being able to combine common law procedures and legal principles with ease of enforcement in all EU Member States. Our Commercial Court has a proven track record in ensuring the efficient, just and expeditious resolution of complex domestic and international business disputes.

Ireland for Law is working with the key stakeholders and with the support of our diplomatic and trade missions around the world to demonstrate to the international business community and others safeguarding their legal interests the advantages of using:

• Irish law for their business contracts;
• Irish law for legal advice and transactions;
• Irish dispute resolution for their business disputes.

The Ireland for Law initiative is a forward-looking opportunity and aims to maximise the present and emerging opportunities for Ireland as an international legal services provider. Information about the initiative and what it will mean for the future of the legal profession in Ireland is available at www.irelandforlaw.com.

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References

1. Department of Justice. Justice Plan 2021. Available from: https://www.justice.ie/en/JELR/Department_of_Justice_Action_Plan_2021.pdf/Files/Department_of_Justice_Action_Plan_2021.pdf
2. Justice Plan 2021, page 18.
3. Ibid pages 265-325.
4. 2020 Rule of Law Report, country chapter on the rule of law situation in
   Ireland, page 5.
5. See EU Justice Scoreboard 2021, page 26.
6. Legal Services Regulatory Authority. Setting Standards: Legal practitioner education and training. Available from: https://www.lsra.ie/wp-content/uploads/2020/11/Section-34-ET-FinalReport-to-Minister.pdf.
7. Council of The Bar of Ireland. Council of The Bar of Ireland Submission to
   the Legal Services Regulatory Authority: Barriers for Early Career Barristers
   and Increasing Diversity. Available from:
   https://www.lawlibrary.ie/app/uploads/securepdfs/2021/06/Submission-to-the-LSRA-under-Section-34-of-the-2015-Act-June-2021.pdf