Criminal legal aid barristers have voted overwhelmingly in favour of ‘strike’ action, demanding an increase in funding to prevent the system from collapsing.
This comes after years of severe cuts, and the government’s repeated refusal to address the crisis facing the sector.
Not only will this action cause tremendous disruption in the criminal courts, prompting further headaches for this crisis-ridden government; but it is also a sign of how even previously privileged professions are beginning to turn against the Tories and move into struggle.
Many commentators have warned that criminal legal aid is facing an ‘existential crisis’.
Analysis from the Criminal Bar Association (CBA) shows that 22% of junior barristers and 46% of QCs have left the criminal bar since 2016. The result is that 45% of barristers specialising in criminal law are now aged 45 or over.
Of those who have remained, many have cut back on the amount of legal aid cases they take on, in order to focus on more profitable areas of work.
With some fees for junior barristers being as little as £50 for a morning’s work, it is not difficult to see why many are abandoning the profession.
The impact of this exodus is also beginning to be felt in the criminal justice system. For example, a total of 194 criminal trials were forced to be abandoned between July and September 2021, due to a lack of available prosecution or defence barristers. This was 32 times the number dropped over the same period in 2020.
While the situation is bleak for barristers, it is far worse for legal aid solicitors. A review commissioned by the government, led by retired judge Sir Christopher Bellamy QC, found that there are serious questions about how long criminal legal aid departments of solicitors’ firms can survive.
Around two thirds of solicitors working in criminal defence are now over the age of 45. Only around 70 trainees per year are believed to be specialising in criminal defence nationally. And around 80% of criminal legal aid firms have no trainee programme at all for graduates.
These figures demonstrate that this dispute is not merely about pay, but the very future of legal aid.
The crisis facing legal aid has been building up for decades. But it has become particularly acute since 2010.
During the last 12 years of their austerity programme, the Tories have savaged the Ministry of Justice. The criminal legal aid budget has fallen by £500 million – a cut of around 30% accounting for inflation.
In practical terms, the financial impact on legal aid barristers and solicitors has been catastrophic.
The Bellamy Review found that before taking into account expenses, a criminal barrister in their first two years’ of practice earns a median of £25,000.
For solicitors, the fees earned for legal aid work are now lower in cash terms (i.e. not including inflation) than they were in the late 1990s. Their average income is around £20,000 at the start of their careers, with little in the way of increases further down the line.
The action proposed – and approved, with almost 95% in favour – by barristers is for an indefinite policy of ‘no returns’ from April. This would involve barristers refusing to pick up cases which another barrister has had to pass on midway through a trial due to their unavailability.
With the significant number of cases having to be rescheduled at the moment, this could very quickly bring major disruption to the courts.
The demands of the CBA are perfectly reasonable. That is, they demanded that the government confirm, by February, that they will implement the recommendations of the Bellamy Review for an immediate £135 million increase in criminal legal aid funding, in order to prevent an immediate collapse of the system.
The response of the Tory government has been to bury their heads in the sand. They refused to meet the deadline, apparently because it was too important to rush – not that this has worried them for the last 12 years!
This resulted in an astonishing war of words between the CBA and Tory Justice Secretary Dominic Raab, which ended with the CBA (correctly) accusing Raab of “spreading lies”.
Since lawyers went on strike back in 2014-15, the can has been constantly kicked down the road by the Tories. Now legal aid lawyers are reaching breaking point.
This desire to fight the government by those working in legal aid is unprecedented. In the past, barristers were members of a largely privileged profession, who would have seen going on strike as unthinkable.
Now, with the deepening crisis of capitalism, barristers are being forced to take collective action against the government, in order to simply keep the legal system from collapsing.
This proposed action by barristers is a welcome start. However, it is vital that legal aid solicitors are encouraged to join the action, and that the option of a total refusal to take on new cases remains on the table.
As a growing number of legal professionals are realising, it is only through such action that we can even begin the fightback against capitalism, which is incapable of providing even the most basic of demands: that of a fair, fully-funded justice system for all.