UK Barrister Strikes
lawgazette.co.uk
On 27th June 2022, criminal barristers across England and Wales embarked upon a fresh wave of strike action. Industrial action has continued since the end of June, with a five-day walkout due to occur between 18th and 22nd July. The strike, which has been coordinated by the Criminal Bar Association, is primarily characterised by court walkouts. Moreover, many barristers are refusing to accept new instructions, meaning that they may not take on additional cases. A no returns policy has also been pursued. Whilst strike action will be suspended during the last week of July, it will resume on 1st August, at which point criminal barristers will be joined by court security staff.
The latest wave of industrial action stems from the inadequate provision of legal aid. Criminal legal aid is designed to provide financial assistance to defendants who are due to appear before courts. It is primarily used to procure legal representation by providing remuneration to counsel. Legal aid therefore makes a material contribution towards the earnings that criminal barristers can expect to receive. The Criminal Bar Association has argued that legal aid rates have been subject to steep reductions in recent years - they are estimated to have fallen by 28%. This reduces counsels’ incomes; the median earnings for a junior criminal barrister with three years' call stands at a lamentable £12,200. Arguably, this fails to sufficiently reward barristers for the complex, sophisticated, and protracted tasks that they undertake. It is unacceptable for highly skilled legal professionals to be so poorly remunerated by the state, particularly when considering that they practise what is undoubtedly one of the most crucial areas of law. The Criminal Bar Association has called for a 25% increase to legal aid rates, rejecting the Government’s offer of a 15% uplift.
However, the strike is not merely based on concerns about earnings; it is also fuelled by fears that meagre legal aid rates may have disastrous ramifications for the wider criminal justice system. In particular, inadequate remuneration has forced many barristers to exit the profession, whilst also deterring a number of aspiring lawyers from specialising in criminal law. This means that cases must be distributed amongst a smaller volume of barristers, culminating in considerable backlogs. There may be a protracted period of time between the date on which a defendant is charged and the date on which a trial commences. This threatens to compromise the expeditious administration of justice, potentially infringing upon defendants’ human right to a fair trial (as stipulated by Article 6, European Convention on Human Rights). At the same time, victims may be unable to obtain justice for a lengthy period of time, potentially undermining confidence in the system. Reduced legal aid rates are thus highly problematic. This has been well articulated by the Chair of Criminal Bar Association (Jo Sidhu QC): “if we haemorrhage specialist criminal barristers, who provide prosecutors, defence advocates and judges, then victims of crime take the added pain of more months to their trial dates”. His warnings have been endorsed by the President of the Law Society (Stephanie Boyce) who noted that “the short-term impact of direct action will pale in significance against the permanent departure of even more criminal defence solicitors, barristers and law firms if this demanding work in the public interest is not properly rewarded”. This is, as she puts it, “a make-or break moment for the future of the beleaguered criminal justice system”. It is also worth noting that the “massive exodus” of barristers that Sidhu describes could reduce the number of prospective criminal judges, thereby further undermining the justice system.
The Government has responded to the latest round of strike action with dismay. The Justice Secretary, Dominic Raab, has argued that the proposed 15% increase in legal aid rates would increase barristers’ earnings by approximately £7,000. The Ministry of Justice has also expressed concerns that strike action will compound court backlogs, culminating in further distress for victims of crime: “the current strike is now forcing victims to wait for justice, despite a generous £7,000 pay rise for the typical barrister coming in September”. Moreover, it argues that progress has been made to alleviate backlogs, mitigating the concerns that have prompted strike action: “We are making progress in tackling the backlog with the crown court caseload down by over 2,000 and the magistrates’ court caseload a fifth lower than the peek last summer”. Nonetheless, inadequate legal aid rates are driving barristers away from the profession, resulting in damaging long-term consequences for the administration of justice. The Government should act on this immediately; a 15% increase in legal aid rates does not go anywhere near far enough to tackle the well founded and legitimate grievances of the Criminal Bar Association, and the legal profession more widely. The prompt administration of justice, litigated by skilled legal professionals, is a cornerstone of the rule of law, and by extension our precious democracy. Every effort should be made to preserve it, chiefly by altering the contemporary approach to legal aid.
by Dara Foody