LONDON (Bywire News) - The Criminal Bar Association (CBA) and its members are currently embroiled in an ongoing dispute with the government and the Ministry of Justice (MoJ). It’s seen weeks of direct action, resulting in courts becoming further backlogged. So far, the government has remained intransigent. Now, while the CBA ballots its members on further action, it’s released the details of what this may look like. And the CBA is now effectively balloting for strike action.
Legal Aid in chaos
Bywire News has been following the story – you can read the background to it here. Essentially, successive governments have decimated the Legal Aid system to the point where criminal barristers and other professionals are severely underpaid and have no confidence in the government.
Despite an independent inquiry finding Legal Aid needed at least £135m invested into it, the government has so far failed to meet this expectation. It has left the system on the brink of collapse. So, the CBA has been taking direct action since April 11.
Members have been refusing ‘return work’ (work that is not booked in with them). So far, the government hasn’t budged – and CBA members are not happy.
‘Taking a stand’
CBA chair Jo Sidhu QC said in a statement for Bywire News:
“Throughout the past year, we have continued to engage regularly with the MoJ, including a further meeting with the under-secretary of state for justice on May 25. We have made repeated efforts to persuade government to at least honour the basic recommendations of the CLAR [independent review] to increase AGFS [Legal Aid] fees by a minimum of 15% without delay rather than force us to wait until October, and then only to attach any increase to new representation orders thereafter so that we see no benefit to our incomes until late 2023 and beyond.
Despite our reasonable requests, and notwithstanding the clear exhortation in the CLAR (submitted to government on November 30 2021), that there is “no scope for further delay” in implementing the minimum increase to our fees, government continues to insist that they will not shorten their timetable.
Nor will government give any assurance that they will accept any of the other urgent reforms to the AGFS recommended by the CLAR, such as payment for written work and greater flexibility in claiming for special and wasted preparation. On the contrary, we are told that any such reforms must be cost neutral and no additional funding will be made available to bring them into effect. And, in response to the CBA’s repeated requests for a timetable to resolve and enact these ongoing and much needed reforms, the Ministry steadfastly refuses to provide one.
As for the CLAR recommendation for an effective independent advisory board to ensure that the AGFS is regularly reviewed so that we may bring to an end the almost annual ritual of wrangling over the plummeting real value of our fees, government has proposed a talking shop (“engagement forum”) with no power to advise on legal aid at all.
If even these basic recommendations from the independent review are being delayed, diluted or denied by government, then any hope of persuading them to meet our legitimate demands for a second brief fee in section 28 cases, and an annual index linking of our payments to help insulate us from rampant inflation, will be similarly crushed; that is if we are not prepared to take a stand”.
And taking a stand the CBA is. Because the organisation has started balloting them on further, extended action. And we now know the details of this.
Potentially seismic action
CBA members have several options. The first is to end the action altogether. The second is to refuse any new work under Legal Aid – meaning the system would have barely any criminal barristers operating within it. And the third is perhaps the most impactful.
Members can opt to begin court walk-outs in Legal Aid cases (Advocates Graduated Fee Scheme ones). If they vote for this, the action will be incremental in nature. The first walk-outs would be on Monday, June 27 and Tuesday, June 28. The following week, commencing Monday, July 4 would see three days of action; the following week four and the next week five. Then, the week commencing July 25 would see no action. After this, the process would begin again.
The pattern of alternating weeks would then continue, with no end date. The CBA will continually review the situation until something changes. The effect of this could be seismic on the criminal justice system. It’s already facing huge backlogs because of the CBA’s current action. Physical walk-outs therefore could result in an all-out collapse. Moreover, the last time the CBA organised official walk-outs was over eight years ago: a half day in January 2014 and a full day in March 2014. These factors perhaps indicate the gravity of the situation facing the CBA and its members.
“Unity is strength”
Sidhu said in a statement for Bywire News:
“The stakes could not be higher.
Our action is aimed at redressing the shortfall in the supply of criminal barristers to help deal with the crisis in our courts.
Government refusal to take the urgent action needed to invest in criminal legal aid in order to reverse the exodus of our country’s prosecution and defence barristers is only worsening delays to cases and heaping misery on complainants and victims of crime, whose trials suffer repeated postponements from government intransigence.
We simply need more criminal barristers to manage the unprecedented backlog that is paralysing our courts and justice system, while we are haemorrhaging the very publicly minded criminal barristers the government relies upon and victims depend upon in their hour of need.
From the consultations [we’ve] held… it is clear that the Criminal Bar has no confidence that government is willing to deliver a fair and lasting solution to the crisis within our profession and within the criminal justice system without firm action that forces them to the negotiating table…
We take great pride in the fact that we are a truly democratic association. Our members have always respected the outcome of a free and fair voting process, whatever the result. We will therefore be faithful to the ballot.
Our unity is our strength”.
Strikes
The is no other word for the CBA’s potential walkouts than a ‘strike’. Some media outlets previously used this term in relation to the CBA’s return work refusal; something said media outlets then had to retract as it was incorrect. Now, this is actually the case.
This is a huge escalation of action from the organisation and its members; almost unprecedented.The ballot closes on Sunday, June 19, with the results expected soon after that. Whether or not the CBA and its members will increase their action to full walkouts is currently not clear. But just the fact that they are considering it demonstrates the government’s dire attitude to Legal Aid – and its contempt for the criminal justice system and those who work tirelessly in it more broadly.
(Writing by Steve Topple, editing by Klaudia Fior)