The Bar Strike – Striking to save our Justice System

FEATURE

The Bar Strike – Striking to save our Justice System

By Alastair Logan OBE., LL.B Council Member for the Surrey Constituency

Criminal barristers in England and Wales have started an indefinite, uninterrupted strike over legal aid rates from 5 September 2022. The strike is an escalation of the protest by criminal barristers and the government. The government decides what barristers get paid when defending those who qualify for legal aid. Following government cuts between 2010 and 2014, an Independent Review of Criminal Legal Aid 1 published in December 2021 concluded that “funding for criminal legal aid should be increased overall for solicitors and barristers alike as soon as possible to an annual level, in steady state, of at least 15% above present levels”. The Review found that an immediate additional £135 million a year was required to help nurse the crumbling system back to health after “years of neglect”. The review’s chair, Sir Christopher Bellamy QC, stressed there was “no scope for further delay”.

The government responded by accepting the Independent Review’s recommendation by stating that they would provide the extra £135 million a year into the criminal legal aid sector. It later announced in June that it would increase the fees by 15% at the end of September 2022. The Criminal Bar Association (CBA), however, wants a 25% pay rise from the government, arguing that with inflation at around 10% this “means that a 15% rise in fees will be more than extinguished by the time we receive it.” It says there has been an average decrease in criminal barristers’ real earnings of 28% since 2006 with average earnings from legal aid collapsing by 23% during the pandemic. In a statement the CBA said: “94.34% of the 1,908 members who cast their votes have made it absolutely clear that they are not willing to be led by a government timetable that brings no prospect of a settlement until the end of September. They have already waited too long. Through our labour and our goodwill, we have sustained a chronically underfunded criminal justice system on behalf of the public while suffering substantial reductions in our real incomes and exhausted by the hugely increased demands placed upon us, often for little or no reward.”

The Commons Public Accounts Committee in 2016 said: “The Criminal Justice system is close to breaking point … Resource pressures mean that costs are being shunted from one part of the system to another and the system suffers from too many delays and inefficiencies. There is insufficient focus on victims … The system is already overstretched, and we consider that the Ministry of Justice has exhausted the scope to make more cuts without further detriment.” We are more than six years on from that Report and the criminal justice system is now broken. Broken by more than a decade of cuts to every part of the process from police investigations to the Crown Prosecution Service, from probation to prisons, from courts to legal aid. It was further damaged by the pandemic. Its recovery is vitally affected by the number of courts that the Ministry of Justice has closed. The digital world, on which we all came to rely much more because of the pandemic, has made crime more complex than ever and it is clear that the police are ineffective in dealing with such crime as well as being ineffective in dealing with crime generally. That, too, owes much of its cause to the attrition of cuts to policing.

Another consequence of the attrition on the criminal justice system is that morale across the entire system is at an all-time low. Judges, defence solicitors, Crown prosecutors, court staff, police, probation and prison officers and barristers working in the criminal justice system are all exhausted. In increasing numbers people have quit the criminal justice system and there are now chronic shortages of defence solicitors, prison officers, police and barristers. There is now a dangerous shortfall of lawyers with specialist skills to prosecute and defend in serious cases. And the number of trained personnel providing advice and representation to people in custody has reached levels where there are deserts in parts of the country and where the age profile demonstrates that there are no new entrants.

As the CBA said: “We have already lost too many of our colleagues who can no longer afford to maintain their commitment to criminal work and who have left our ranks out of desperation and despair. Every day we are losing more. We have shrunk to a mere 2,400 full time criminal barristers. The future viability and diversity of the criminal bar is already imperilled. It is a recognition of the scale of this crisis that has driven so many of you to vote in favour of action.”

Industrial action was first taken in April 2022 when criminal barristers stopped accepting “returns” – where a barrister will accept the Brief for another barrister who cannot attend court and represent the client. At the time, the Justice Secretary (and Lord Chancellor) Raab labelled this decision by the CBA “unnecessary and irresponsible”, and “holding justice to ransom” linking barristers’ strike action to court delays. He claimed: “The next phase is about systemic reform and the outcomes for the people of this country, not simply the pay of one or other group of lawyers. Bringing forward early consideration of certain individual elements such as remuneration for barristers, as suggested by the CBA, would risk neglecting those others who make a valuable contribution – including solicitors and legal executives”. 2

Barristers then staged a series of escalating walkouts for four weeks from 27 June 2022 because their demands had not been met. These strikes were marred by allegations that Raab had requested the names of striking criminal barristers to be provided to the Ministry of Justice (MoJ) following reports by the Law Gazette 3 that Crown court clerks had been asked to record daily data regarding non-attendance including those who did not attend court owing to strike action. When challenged the MoJ denied that this had happened, but emails provided to the CBA confirmed that Raab had made a request for names to be collected which must have been for the purpose of taking action against identified barristers on strike. The matter has now been referred to the Information Commissioner.

Commenting on the strikes, Kirsty Brimelow QC, who on 1 September took up her role as chair of the CBA, said: “Barristers have stopped soldiering on through downtrodden courts.” She called for “proper investment in barristers who deliver the justice”, adding “this is not a ‘world-class justice system’, as set out as the vision of the Ministry of Justice. It is not even a functioning justice system.”

Justice Minister Sarah Dines has described the indefinite walkout as “an irresponsible decision that will only see more victims face further delays and distress”. The MoJ maintains that an increase beyond the proposed 15% will “cost a disproportionate amount of taxpayers’ money”.

There is a build-up of distrust between both sides and no sign of agreement. Criminal barristers, who had before this year only staged a day-and-a-half walkout back in 2014, are now at the beginning of an indefinite, uninterrupted strike. There is a new Lord Chancellor, and it remains to be seen whether he will adopt a different attitude to his predecessor. Will he accept that all this is not just about pay, but also about the current state of the criminal justice system and the future of the criminal bar and solicitors providing advice and representation in criminal matters? Will he accept that the actions of the government in starving the criminal justice system of funding, adequate legal aid rates and resources has had a wider impact than they have so far admitted? Will he accept that defendants, witnesses and victims have been denied justice? Will he accept that confidence in the government’s handling of the situation is at an all-time low and raises serious concerns about the government that claims the title of the “law and order party”? Or will he, like his predecessor and other senior members of the government, choose to abuse and denigrate lawyers and characterise their actions in trying to prevent the destruction of the criminal justice system as the actions of “Lefty lawyers”? The criticism of lawyers is too often a criticism of what lawyers enable: the limitation of government through the application of law. When government ministers denigrate lawyers, their real target is the rule of law. As Fiona de Londras, Professor of Global Legal Studies, Birmingham Law School, University of Birmingham said: “Given this broader context, the home secretary and prime minister’s attacks on “lefty human rights lawyers and other dogooders” are more than mere rhetorical flourishes in conference speeches to the party faithful. They tell us something about how this government sees the law and the ability of people to avail of legal processes to restrain government action.” 4

The anonymous best-selling author the Secret Barrister explains: “It is not just about pay. It is about so, so much more. The criminal justice system has been devastated by years of cuts and chronic underfunding. Every part of the system has been slashed to the bone.”

And in a Tweet, he said the Justice Secretary was himself “holding justice to ransom” by: “stripping the criminal justice system of funding, forcing criminal barristers out of the profession they love with unsustainable pay and conditions, and deliberately increasing delays for those affected by crime.”

He proposed seven steps to be taken to reform the criminal justice system 5 . They were:

■ Reform of the bail system and the practice of releasing suspects under investigation sometimes for years while police investigations dragged on resulting in many potentially dangerous suspects being bailed with no conditions;

■ Rebuild the Courts. Between 2010 and 2020, the government closed or sold more than half of court buildings. This wrecked the tradition of rooting justice in the community, forcing victims, witnesses and defendants to travel for hours to their nearest court centre. It also contributed to a growing case backlog that is now at record levels.

■ Then Open the Courts. Once we have courts, let them hear cases. For years, the government restricted the number of days each year that courtrooms opened (so-called “court sitting days”), to save trivial sums on court staff. This led to the absurdity of judges sitting at home and courtrooms sitting empty, while trials were delayed due to a supposed “lack of court time” to hear them. It was this policy that caused the backlog.

■ Right to a timely trial. After years of delay at the investigative stage, the people involved can expect a further wait of six to 18 months for a crown court trial. When that day arrives, there is no guarantee it will go ahead — all too often, victims and witnesses will be told no courtroom is available, and the trial will be put off for another year. And then potentially again when the next date comes around. I have cases from 2018 still awaiting trial.

■ Acknowledge the innocent. For years our politicians have encouraged a conception of criminal justice as a production line: of the police arresting a guilty person, the courts convicting and a judge passing a sentence. The notion that an accused person might be innocent has been lost. An acquittal is seized upon as evidence of systemic failing, rather than a sign of justice working. As a result, the system penalises those who are acquitted. Not only is there no redress for the time spent in custody or on bail awaiting trial, but for defendants who are not eligible for legal aid, the state will refuse to pay their legal costs even when they are acquitted. It is a tax on the innocent.

■ Invest in our future. Junior criminal lawyers today are the senior criminal judges of tomorrow. And we are losing them. Appalling pay and conditions are forcing junior solicitors and barristers out of the profession. A dearth of young criminal solicitors is creating a “demographic timebomb” and pushing up the average age of the profession. Criminal legal aid firms have nearly halved since 2010, and swathes of the country are “legal aid deserts”, with no specialist legal aid solicitors available.

Three key consequences of this fallout are increasing court backlogs in England and Wales, which at the end of June stood at 58,973 outstanding cases, and a brain-drain from the criminal bar in the wake of record pay rises in corporate law firms. Many outstanding cases have been awaiting trial for a year or more, now more than 27% and up from 25% in Q4 2021 and 21% in Q1 2021.

Criminal silk Chris Daw QC expressed his frustration on Twitter: “I don’t think the government realises that the barrister strike is not really a strike at all. For most junior criminal barristers it is the end of the line. They just can’t survive on legal aid rates. So, they will just leave and do something else.”

Without access to legal aid, justice is meaningless. Unsustainable levels of legal aid rates can push new lawyers who can have up to £100,000 worth of student debt while existing on minimum wage salaries, out of working in the criminal justice system. The CBA says income is fallen by nearly 30% over the past two decades and specialist criminal barristers make an average annual income after expenses of £12,200 in the first three years of practice. Barristers are being paid less than the minimum wage for court hearings when travel and hours spent preparing the case are factored in and are not paid at all when hearings are cancelled. In a Leader The Times stated: “Strikes are disruptive and sectional, and rarely serve the public interest. The barristers’ vote to stop work is a rare exception that merits support. The criminal justice system has been run down so far in the past decade and the government has proved unresponsive to reasoned argument that strike action is a legitimate last resort.” It went on: “the result is that the legal aid budget has been cut nearly in half over a decade. Civil legal aid is no longer on offer in many cases. Even when it is still in theory available, such as for women suffering domestic abuse, applicants struggle to find a lawyer because so many have given up legal aid work. The criminal justice system is in crisis.” And it might have added “and so is the legal aid system.”

It is the government’s complete failure to acknowledge the effect of their actions in starving the justice system of funds and resources that results in them failing to acknowledge that innocent people may spend years awaiting trial with an accusation hanging over them, unable to clear their names. Guilty people are stuck in limbo unable to move on or access rehabilitative facilities that change behaviour. Victims will not get justice. Witnesses will walk away. Skills will be lost. Judges will be harder to find with the necessary expertise. And even if the government were to extend legal aid and enable people to earn a reasonable living by working in the justice system it will be a long time before we could be back in the position we were in 2010.

“There have been many studies into the impact of austerity politics and the devastation wreaked in its name. However, the tricky topic of access to justice and, in particular, the 2013 legal aid cuts, has been often overlooked. The legal aid scheme was pared to the bone as a result of what are known as the LASPO cuts (as in the Legal Aid, Sentencing and Punishment of Offenders Act 2012). The coalition government’s flagship legislation was predicated on one idea: to cut £350 million a year from a total £2.1 billion budget. That was achieved by removing public funding for social welfare law advice: employment, family law (unless there is evidence of domestic violence), housing (except where there is a risk of homelessness), immigration and asylum, and welfare benefits. Such swingeing cuts took place as the coalition government imposed its austerity policies on the UK.

At the time, LASPO represented the biggest retrenchment of the legal aid scheme since it was introduced as part of the welfare state. All that remains is what couldn’t be removed because of the modest protections afforded by the European Convention on Human Rights. The 2013 cuts therefore represent the death of an idea: the final severing of the link between legal aid and the welfare state. Nevertheless, commentators often understand the legal aid crisis as being exclusively about our ‘broken’ criminal justice system and many all too often dismiss legitimate concerns as the special pleadings of ‘fat cat’ lawyers ‘riding the gravy train’. Yet defence lawyers have not had a pay rise for over two decades – and even had an 8.75% fee cut foisted on them in 2014.” 6

Lubna Shuja, the Vice President of the Law Society said: “Solicitors share barristers concerns about the collapsing criminal justice system. Solicitors are experiencing the same squeeze as barristers but many are limited in the action they can take by their professional obligations to their clients and their legal aid contracts. Whilst barristers vote to escalate their direct action solicitors continued to vote with their feet by leaving the profession altogether. Many see no future in criminal defence work following the MoJ’s failure to fully implement Lord Bellamy QC’s recommended minimum fee increases. The number of solicitors and firms doing criminal legal aid work continues to fall at a time when the criminal defence profession is needed more than ever to tackle the huge backlog of cases.

“Meanwhile lawyer duty solicitor schemes in places are collapsing meaning that people who are arrested may be unable to get advice in the police station that they are legally entitled to have. This would have serious adverse consequences for the fairness of any subsequent trial if they are charged. Our members are not striking but leaving altogether and action is needed now before it is too late to turn the tide of solicitors and firms leaving criminal defence work”

The Law Society has stated that the proposed reform for fee increases in magistrates court and police station work set to be at the rate of 15% actually amount to a 9% increase across the board when taking into account all areas of criminal legal aid. And that was without the impact of the rise in the cost of living.

The Conservative party has been in power since 2010 and the situation we currently face is entirely of their making. And it is not as if they have not had all the information and advice, they needed to enable them to step in and alter course to avoid the current crisis. Perhaps that will change with the new Lord Chancellor? Perhaps – but I wouldn’t hold my breath. ■

1. https://www.gov.uk/government/groups/independent-reviewof-criminal-legal-aid

2. https://www.thetimes.co.uk/article/criminal-barristers-mustbe-patient-for-legal-aid-reform-q5qwd3vgl

3. https://www.lawgazette.co.uk/news/court-staff-asked-toreport-strikers-data-for-raab/5112934.article

4. https://uk.news.yahoo.com/government-ministers-denigratelawyers-real-131835257.html?guccounter=1&guce_ referrer=aHR0cHM6Ly93d3cuZ29v

5. https://www.thetimes.co.uk/article/the-secret-barrister-thelaws-broken-heres-how-to-fix-it-tsqtxrtt0

6. https://blogs.lse.ac.uk/politicsandpolicy/justice-systemausterity/