The present threat from the Bar Council to withdraw from the free legal aid scheme is the third such threat in 10 years. According to the council, there have been persistent problems with the Department of Justice about getting payment for work done by barristers.
Part of the problem is that the defence counsel, paid by the Department of Justice under the free legal aid scheme, is paid the same as the prosecution counsel. The latter is paid by the Director of Public of Public Prosecutions, which requests payment from the Department of Finance. Before a defending barrister can be paid, therefore, the Department of Justice must check what the prosecution barrister has been paid.
The first dispute about non-payment began in 1988. At the time, the process for payment was paper-based and the system of indexing cases in the DPP's office was different from that used in the Department of Justice and the courts. A manual search of files was needed to authenticate each payment claim so it was hardly surprising that staff at the Department were overwhelmed and the system effectively collapsed.
Barristers working in free legal aid withdrew from the scheme and the Department admitted it badly needed an overhaul. It agreed to computerise the system for payment, and a common indexing system for the DPP's office and the Department of Justice was introduced. Barristers agreed to write off fees for cases not easily identified under the old scheme and resumed working.
Problems arose again in 1993. This time, the Department denied any responsibility and said there was no backlog. Following an examination of the Department's procedures by Coopers and Lybrand, for the Bar Council, it was discovered that the problem lay with the solicitors.
Some instructing solicitors were submitting claims on behalf of barristers long after the cases were concluded and sometimes the claims were incomplete.
As a result, the Bar Council introduced a system of direct claiming by barristers, with the council processing the claims.
Two years later, there were again complaints from the Bar Council. This time, they related to the Dublin Circuit Court, which deals with more than half of the criminal cases in the State which have legal aid. Staffing problems in this court led to delays in the processing of claims. These were rectified following representations from the council.
In June 1996, barristers started to notice another slow-down in payments. It emerged that the Department of Justice's accounts branch, located in Killarney, Co Kerry, had insufficient staff and computers to keep up with the claims. The following month the Bar Council again sanctioned withdrawal from the scheme.
The Department gave undertakings to rectify the problem of resources in Killarney, and also introduced some changes in procedures; the arrears were paid and the threat was withdrawn.
But the problems remained and got worse the following year. According to the Bar Council, by June, a proportion of claims was being returned by Killarney marked "no payment due", leaving those barristers who work virtually full-time on criminal work working for nothing. This has led to the latest threat to withdraw entirely from the service.
But even when the system works it is cumbersome.
The process begins when an accused seeks from the court, and is granted, free legal aid. The Circuit Court office then records that legal aid has been granted. The defending barrister does his or her work, and submits the claim for payment to the Bar Council. The details are forwarded by the council to the registrar of the Circuit Court for certification.
Meanwhile, the process of paying the prosecution counsel in the case is ongoing. This involves the Chief State Solicitor's office forwarding a report to the Director of Public Prosecutions, who determines the fees payable and forwards a request for payment to the Department of Finance. There is an agreement that defence and prosecution counsel are paid the same, so the Department of Justice gets confirmation of the fee paid to the prosecution counsel.
This, along with the necessary documentation from the Circuit Court, is sent to the Department of Justice's accounts branch in Killarney, where it is checked, processed and payment is made.
This time it is understood that the Bar Council is not only seeking the payment of the arrears but undertakings that the whole system be streamlined and receive sufficient resources.