“Our precious criminal justice system is in crisis. Be under no illusions, this is a fight for the soul of the criminal bar and our criminal solicitor colleagues. And this is a fight we are going to win.”
Such a rallying cry would not be out of place on any of the many picket lines taking place across the country at the present time.
These were not the words of rail union leader Mick Lynch, however, but of Lucie Wibberley, the secretary of the Criminal Bar Association (CBA), at a demonstration of striking barristers outside the Old Bailey in London on Monday.
Starting earlier this week, barristers began escalating their action against the crisis in legal aid. This involves not only refusing to take on any new legal aid cases, but also refusing to attend court for existing cases on ‘days of action’.
CBA members will eventually build up to a full week of strike action, beginning on Monday 18 July. Following this, the lawyers’ action will continue indefinitely on alternate weeks.
The barristers on strike are on ridiculously low pay. These are the people that defend women at the Sarah Everard vigil arrested and assaulted by police. The people that defend protestors, the people who worked with the Birmingham 6 and Guildford 4.— P O'Neill (@Big_Jim__Larkin) June 27, 2022
They are on our side . pic.twitter.com/2BP5TRIORJ
This is a remarkable turn of events; only the second strike of barristers in almost 500 years (following a one-day walkout in 2014).
Furthermore, since barristers are officially self-employed, they do not have the same legal protections as workers who go on strike. Indeed, these days of action can actually be seen as ‘wildcat’ strikes.
The barristers’ strike will effectively shut down the criminal courts, forcing the Tory government to fight on yet another front in the ongoing ‘summer of discontent’.
Following years of cuts, criminal legal aid is at breaking point. A criminal barrister takes home an average of £12,200 in their first three years after qualifying, despite the large debts that most incur during their training period. And salaries remain low even for more experienced barristers.
This has resulted in a significant exodus from the criminal bar. 22% of junior barristers and 46% of QCs have left the profession since 2016.
Hundreds of cases are now being delayed due to a lack of available prosecution or defence barristers. Legal aid solicitors are also in danger of becoming extinct. Two-thirds are over the age of 45, whilst less than 100 qualify nationally each year.
The government’s own review last year found that a £135 million cash injection into criminal legal aid was required to prevent an immediate collapse, including a 15% increase in fees paid to barristers.
The Tory government has dishonestly claimed that this additional funding will be brought in later this year. But the reality is that these fee increases will only apply to new cases, which won’t be paid to barristers until these cases conclude, potentially years in the future.
And the quoted ‘15%’ increase is actually a measure of predicted income, based on expected rises in crime over the next few years. In fact, pro rata fees are only increasing by around 6%.
With the government refusing to budge, and with Tory ministers spreading outright lies about the crisis in legal aid, an astonishing 80% of CBA members voted recently in favour of the current escalated action.
This was not a decision that most barristers took lightly, due to the impact on many vulnerable clients, not to mention the professional dangers of taking part in a strike.
The strength of feeling was summed up by one barrister, who stated on social media that:
“It goes against every one of my instincts to walk out on my client. I hate the very idea. And it places me personally at risk of regulatory action. But this is a stance we must take to protect and preserve a viable criminal justice system.”
Since this vote, the attitude of many barristers has hardened further.
Less than a week before the strike began, a disgraceful letter was sent out by the Lord Chief Justice, threatening barristers with personal liability for wasted costs orders, and warning of disciplinary proceedings against those participating in this escalated action.
Striking Barristers joined today on picket line by @RMTunion ✊— lan Byrne MP (@IanByrneMP) June 27, 2022
Tory efforts to demonise striking workers have failed.
Strikes don’t pit barrister versus railway worker, or postie versus cleaner.
ALL workers have a right to a fair day’s pay for a day’s work. #EnoughIsEnough pic.twitter.com/KYLFf7THtO
As with all the fights the Tory government seems to be picking at the moment, this belligerent stance has spectacularly backfired.
Solidarity has come in from across the bar, with leading QCs stating that they will offer pro bono representation to any barrister who faces the Bar Standards Board for participating in this action.
Similarly, many barristers have questioned why a leading figure within the supposedly ‘independent’ judiciary is taking the government’s side in this dispute.
The sight of hundreds of barristers on picket lines may have come as a shock to many. Even more impressive, however, was the sight of RMT members attending the Old Bailey to offer solidarity.
The arrival of RMT banners to the lawyers’ picket was met with cheers and applause, with rail union activists shouting “up the workers!”
Great to see @RMTunion banner on the barristers' strike today.— Richard Burgon MP (@RichardBurgon) June 27, 2022
The powers that be will throw everything at workers who take strike action for fair pay. Solidarity amongst workers is the best response to that! pic.twitter.com/dGWi2GfNrx
This demonstrates the rapidly changing consciousness within the working class – including amongst formerly privileged layers of society, who would never have previously considered themselves to be part of the labour movement.
There is now a recognition amongst many barristers, however, that they are part of the same struggle as workers across the board; and a growing recognition from the wider trade union movement that legal aid barristers deserve the same solidarity as has been shown towards the RMT and other striking workers.
No group of workers are shielded from the crisis of capitalism. From NHS doctors to airline pilots to university lecturers, and now barristers: many so-called ‘middle-class’ layers and ‘white collar’ workers are being ‘proletarianised’ – seeing their pay and conditions eroded – and are beginning to organise and fight back.
While legal aid solicitors are not currently part of the action, the London Criminal Courts Solicitors’ Association has publicly expressed its support for barristers.
There are also rumours that some solicitors may soon join barristers in refusing to attend court for existing cases; although, due to a legal technicality, solicitors’ associations will be unable to encourage solicitors to walk out in the same way as the CBA.
Whatever direction the strike takes, criminal legal aid barristers have proved an important point: that even layers of traditionally middle-class workers can – and will – move into struggle as the crisis of capitalism deepens.
To win this battle, the CBA must formally encourage legal aid solicitors to join them in walking out, in order to completely shut down the criminal courts.
And they must reach out to the wider labour movement: to begin coordinated action against the Tory government – and, ultimately, against the capitalist system, which is unable to provide decent pay and living standards for legal aid professionals, or for any other section of the working class.