Access to justice: Criminal barristers on indefinite strike to defend legal aid

Sara ChessaTuesday 13 September 2022

On 7 September, criminal barristers working in the field of legal aid gathered at the Supreme Court in Westminster in England, for a sit-in protest. They shared with the press and the public their concerns about what they claim is government disregard for their pay conditions and the effect on the justice system.

In late August, the Criminal Bar Association of England and Wales (CBA) – whose members include the striking barristers – voted in favour of a continuous strike beginning on 5 September. At the time, a spokesperson for the UK Ministry of Justice (MoJ) said that ‘strike action is only serving to delay justice for victims’.

However, according to the CBA, the delays began much earlier than the strikes. Jo Sidhu KC, Chair of the CBA and a barrister at 25 Bedford Row in London, says ‘it’s a tragedy for all concerned when trials involving harrowing offences are adjourned at the last moment because of the unavailability of defence counsel.’

However, he says, ‘the action the Criminal Bar takes with a heavy heart only shines a light on over 200 trials of serious offences in the Crown Court, similarly aborted in just the January to March period this year […] because there was simply no one available to prosecute or defend on the day’.

Sidhu adds that this represents a 12-fold rise on the same period in 2021.

According to a parliamentary briefing available on the CBA’s portal, a huge decrease in the numbers of criminal barristers in the UK – together with an insufficient number of judges – have been identified by the Lord Chief Justice as the most serious obstacles to delivering justice in criminal courts.

Criminal barristers’ real earnings in England and Wales have suffered an average decrease of 28 per cent since 2006, as a result of both low income and a drop in purchasing power. In 2021 alone, 300 barristers were forced to leave criminal practice, a number that includes 40 per cent of the most junior criminal barristers – the median annual income of whom is just £12,200. Because of this situation, a quarter of specialist criminal barristers have left the profession over the last five years.

Solicitors share barristers’ concerns. Whilst barristers vote to escalate their direct action, solicitors continue to vote with their feet by leaving the profession altogether

Stephen Denyer
Co-Chair, IBA Rule of Law Forum

At the Supreme Court protest, both junior and senior barristers shared their experiences, detailing how vital their job is for the most fragile segments of society, who can count only on legal aid to defend their rights and receive a fair trial.

‘There is an urgent need for further investment in all parts of the criminal justice system to prevent its collapse and ensure justice for all’, says Stephen Denyer, Co-Chair of the IBA Rule of Law Forum and Director of Strategic Relationships at The Law Society of England & Wales.

‘Solicitors share barristers’ concerns,’ he adds. ‘Whilst barristers vote to escalate their direct action, solicitors continue to vote with their feet by leaving the profession altogether.’

A former criminal barrister, who wished to remain anonymous, told Global Insight about the enormous difficulties that forced her to leave legal aid work. ‘I could not live, I had a lot of debt when I left,’ she said, adding that ‘it is not just a question of the rates that you are paid although that is a big problem. There was a question of timing. You sometimes had to wait many, many months before your fees were paid.’

While continuing to fight for an increase of 25 per cent to fees claimed under the Advocates’ Graduated Fee Scheme, the CBA is now focused on obtaining reasonable conditions and a 15 per cent pay rise on all cases in the current backlog, in addition to the 15 per cent fee increase on new cases from 30 September that the government has implemented.

The lack of a fee increase on the 60,000 existing cases will mean barristers see no benefit to their income until late 2023, Sidhu explains.

These requests were summarised in a letter sent by the CBA to Sarah Dines MP, Under-Secretary of State for Justice, in response to her statement on the government’s position. On 8 August, Dines wrote: ‘I am more than happy to have a meeting with you, and the Government is always willing to engage and listen to the views of all our stakeholders; however, for the reasons above, neither I, nor the Lord Chancellor are prepared to negotiate the settled terms for the first phase of the [Independent Review of Criminal Legal Aid] reforms.’

While initially the MoJ had spoken of a legal obstacle preventing the government from applying the 15 per cent increase to existing cases, it later clarified that there was no such obstacle. The issue then was the cost.

‘The Ministry of Justice accepted that the cost of paying a 15 per cent increase on the current backlog of cases would be £1.1 million per month until March 2025’, says Sidhu, who attended a meeting with senior civil servants in the MoJ. The government says the cost of paying the money would be £35m over a period of 30 months between October 2022 and March 2025.

‘This is a small amount of money for government’, says Sidhu. ‘However, they are simply refusing to agree to do this. This refusal has caused an impasse between the criminal bar and the government. Unless government changes its position, the strike will continue.’

An MoJ spokesperson told Global Insight that applying the 15 per cent increase to existing cases would cost ‘a disproportionate amount of taxpayers’ money, meaning less money would be available for other priorities, such as increasing investment in victim support or funding court repairs, and would take longer to implement, meaning barristers would have to wait longer for payment’.

Beyond fees, the CBA is also asking for an effective pay review body; index-linked fee increases to match the rise of inflation; payment for written work as recommended by the Independent Review; payment of a second brief fee for section 28 cases; and a timetable showing when further reforms recommended by the Independent Review will be implemented.

Image credit: Barristers Strike London, 2022. Sara Chessa

Download the IBA Global Insight app

Access expert analysis on international rule of law, business and human rights

Join the IBA

Expand your international network, gain new business and learn about the latest legal developments through IBA digital content and events, with IBA membership. Available for individuals, students, law firms, bar associations and corporations.

Find out more