Legal Aid, Declining Representation, and Barristers ‘Strikes’

Lucy Welsh, University of Sussex

Since March 2022, members of the criminal bar have been engaged in industrial action on an escalating scale. The action was sparked by the Ministry of Justice’s reaction to the recommendations of the Independent Criminal Legal Aid Review (ICLAR). In reporting for ICLAR, Sir Christopher Bellamy QC recommended a minimum 15% increase in legal aid fees paid in criminal cases. In his report, Sir Christopher wrote “[i]t is difficult to see how this situation can be sustained,” going on to say “[i]f the providers of criminal legal aid defence were to fail or be substantially weakened, the system as a whole would grind to a halt.” The proposal to increase fees is widely regarded as insufficient to ensure the long term sustainability of legally aided practice in criminal law, despite the government’s views that barristers will receive on average £7000 more per year than prior to the increase. However, in the face of an 8.75% fee cut in 2014, plus decades of stagnation in legal aid fees, the legal profession argues that a 15% increase is inadequate to ensure its longevity. 

Consequently, members of the Criminal Bar Association (CBA) voted in favour of industrial action (not, technically, a strike because barristers are self-employed), consisting of refusals to accept ‘returns’. As criminal trials may be listed at short notice, sometimes a barrister is effectively double-booked and will ‘return’ the case to a colleague. In refusing to accept returned cases, barristers essentially refused to cover cases for their colleagues (often meaning cases could not proceed, and causing barristers themselves to miss out on income). The Independent reported that ‘[m]ore than 6,000 hearings were disrupted by the first 19 days of action, which came on top of a backlog of almost 59,000 crown court cases.’

Action escalated from June to rolling week on/week off walkouts, culminating in all out ‘strike’ action as the Lord Chancellor, Dominic Raab, remained entrenched in the Ministry of Justice’s original position. While Raab described the Bar’s actions as ‘unnecessary and irresponsible’, Labour party leader Keir Starmer accused the government of doing ‘absolutely nothing’ to settle the dispute. 

On 22 August 2022, the CBA tweeted:

All too sadly, none of this is unfamiliar or unexpected to those of us who have either worked in criminal legal aid and/or have researched issues surrounding criminal defence practice in recent years. I spent a decade working in criminal defence practice before moving into academia; a decision partly fuelled by my (personal and professional) concerns over the future viability of legal aid practice. Since 2011, I have been researching the impact of legal aid cuts on practitioners and, by implication, on other institutions and on defendants (with overarching consequences for victims).

In 2021, as ICLAR was being conducted and hot on the heels of a Justice Committee inquiry into the future of legal aid, several colleagues and I were preparing our final report on the impact of legal aid cuts on the Criminal Cases Review Commission. As part of that multi-staged, mixed method ESRC-funded research, we interviewed 45 legal practitioners working in criminal defence to ascertain their perceptions about legal aid funding for (post-)appellate criminal defence work, and their perceptions about the impact of funding cuts. The data obtained from those interviews forms the basis of Amy Clarke and I’s article in the Journal of Law and Society: ‘F**k this game … I’m off’: financial and emotional factors in declining legal representation in miscarriage of justice cases (Vol 49, Issue 3, 2022).

Our research revealed similar themes to those which are emerging during the course of the Bar’s industrial action. We found that there had been a decline in the viability of legally aided defence practice in relation to appellate level work. That decline was influenced by several factors – both emotional and financial – which undermined both the ability and willingness of defence lawyers to engage in this particularly niche area of practice. The themes that we identified for declining levels of legal representation in (potential) miscarriage of justice cases included lawyers’ understanding:

  • Of the intellectual and emotional labour associated with this area of practice (while recognising that general criminal defence practice is also intellectually and emotionally demanding);
  • That the importance of the work performed by the defence lawyer community was neither valued nor respected by the government, or by the general public;
  • That the work done by the criminal defence profession was misunderstood; and
  • That chronic underfunding exacerbated the mental toll on defence lawyers, while also harming business planning, and sustainability.

Despite the existence of information about the impact of sustained funding cuts and fee stagnation in criminal legal aid work, a quick browse through social media reveals continued misunderstanding about the nature of criminal defence lawyers’ work, and how much they are paid. A search of Twitter (using “barristers strike”) revealed misunderstanding about the defence lawyer’s role, conflations of legally aided criminal defence practice with other (more lucrative) practice areas, and suggestions that barristers just made bad choices about which areas of practice to work in, as if that somehow means they deserve to be poorly remunerated. In targeting the legal profession, what all these issues, and the lack of ongoing commitment to engagement displayed by the government, seemingly fail to address is the power imbalances inherent in the criminal justice system (best illustrated by the prosecutor’s burden to prove the case beyond a reasonable doubt, the state having incurred the expense of bringing the case), the fact that most defendants are indigent and experience proportionately greater levels of vulnerability than the general population, and the fact that without a functioning criminal defence profession we lose a key mechanism of accountability in the system with potentially disastrous outcomes for both victims and defendants (from the increased risk of failed prosecutions and/or miscarriages of justice through incompetence or the potential for state agencies to abuse their powers). Our research revealed that appellate level criminal defence practice was especially vulnerable to being dropped from lawyers’ area of practice. While appellate level work does not necessarily have the same urgency as general crime work (in which victims will be awaiting an outcome, and potentially innocent people may be held in custody awaiting trial), we need only to think about the Post Office Horizon computer scandal, or the miscarriages of justice in relation to Irish Republican Army bombings to realise that appellate level work is an important area of practice that adds another check and balance, and encourages accountability, in the criminal process.

Elsewhere, I (with Dan Newman) have suggested that lawyers have, to an extent, been complicit in allowing their own professional role to be undermined, by simply adapting to each commodifying blow that has been handed to them in recent years. Cooke, and our project, demonstrated that legal aid lawyers work in these areas of practice because they feel a calling or desire to do so beyond having a financially lucrative career, and that this is an important part of their professional identity. Now, lawyers are finally saying that they have had enough. Without change, the junior criminal Bar may not survive (and the same applies to defence solicitors, especially as the demographics of that body suggest an ageing population). The situation is articulately expressed by Rape Crisis, which said of barristers’ industrial action:

[T]he responsibility for this disaster of justice does not lie with them. They are boldly taking a stand to push for change and to ensure that the victims (and defendants) of the future have a justice system that is functioning and intact and effective.

If ever there was a time for effective and meaningful communication to exist between the criminal defence professions and the government, it is now. 

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