Letter from IHREC Director to Deputy Secretary John O'Callaghan

Letter from IHREC Director to Deputy Secretary John O'Callaghan

John O’Callaghan,

Deputy Secretary,

Department of Justice, Home Affairs and Migration

Criminal Justice Unit,

51 St Stephen’s Green,

D02 HK52

2 June 2026

RE: Proposal to reform the criminal legal aid fee structure in the District Court

Dear John,

I refer to the proposal by the Minister for Justice which is intended to reform the criminal legal aid fee structure in the District Court, introducing a flat fee for representation.

We note that it is stated that the reform is intended to lead to greater efficiencies in the District Court and a more sustainable Criminal Legal Aid Scheme (‘the Scheme’) and will address structural issues identified during the Review of Criminal Legal Aid in the District Court, such as ‘unnecessary adjournments resulting from the payment per appearance model’. However, whilst the Commission has not had sight of the Review report, we note that relevant stakeholders have raised concerns in this regard.¹ The Commission wishes to emphasise the importance of applying human rights and equality standards in considering any reform of the Scheme given the potential impact of such reform, particularly for structurally vulnerable groups.

The current Scheme² is one of the main avenues by which the State enables the realisation of the right to access to justice and protects the constitutional and international right to a fair trial.³ The provision of free legal representation to those with insufficient means is an essential element in guaranteeing fair trial rights.⁴ The availability of legal assistance is also crucial to ensuring equality before and access to the courts and the ability to participate meaningfully in proceedings.⁵

In the Commission’s submission to the Independent Review of the Civil Legal Aid Scheme we noted that the work of the Independent Review and any resulting scheme should be underpinned by the recognition of the right of access to justice, human rights and equality principles, and the Public Sector Equality and Human Rights Duty (IHREC Act 2014, s.42). The Commission also highlighted the significant role played by private practitioners in legal aid schemes, and that the level of remuneration for private practitioners should reflect the amount of time, work and skill required, noting it is essential that legal aid fees are adequate to ensure private practitioners are willing and able to undertake legal aid work in the interest of preserving access to justice. The Commission highlighted throughout its submission that structurally vulnerable groups are particularly affected where access to justice through the civil legal aid scheme is restricted.

The Commission is of the view that the above considerations should also be taken into account in the proposed reform of the criminal legal aid fee structure in the District Court and we question whether the proposal has undergone an appropriate equality and human rights impact assessment. The Commission has concerns that any proposal that seeks to limit payment of legal fees to a certain number of court appearances and that does not reflect the time, work and skill required, could result in fewer practitioners undertaking criminal law work in the District Court, thus undermining the right to a fair trial. This could also have a disproportionate impact on structurally vulnerable groups who are most in need of effective legal representation.

The Commission reiterates that it is vital to examine the proposal’s compliance with key human rights and equality standards to ensure the fundamental right of access to justice, including for structurally vulnerable groups. Many thanks in advance for your consideration of these issues.

Your sincerely,

Deirdre Malone, 

Director IHREC

¹ The Law Society of Ireland’s observations on the proposed reform include that a flat fee will undermine an accused’s right to a fair trial without any acknowledgment of the complexity, personal circumstances or length of an individual case, and imposes an indeterminate amount of work while cutting the fees provided which will lead to an exodus of solicitors working in this area, as it has done in family law, making it more difficult to secure legal representation - Law Society, Submission on Flawed Proposals to Reform Model for Criminal Legal Aid Work in District Court, 27th March 2026, p.1-2. The Bar of Ireland state that the ‘flat-fee’ model fails to take into account the reality that adjournments are a necessary and inevitable feature of criminal proceedings in the District Court, penalises defence lawyers for necessary adjournments, and proposes a system in which adequate payment will not be provided by the State to those representing accused persons who cannot afford to pay for their own defence. They also state that vulnerable groups are more likely to require multiple adjournments in their cases - Submission to the Department of Justice, Home Affairs and Migration on Simplifying Criminal Legal Aid Payment in the District Court, p.2-3.

² Under the Criminal Justice (Legal Aid) Act 1962, free legal aid is granted to those with insufficient means.

³ Articles 38.1 and 40.3 of the Constitution; Article 6 of the European Convention on Human Rights; Article 14 of the International Covenant on Civil and Political Rights.

⁴ Article 6.3 of the European Convention on Human Rights and Article 14.3 of the International Covenant on Civil and Political Rights. See also United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.

⁵ Human Rights Committee, General Comment No. 32 Article 14: Right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32 (23 August 2007), para 10.