LONDON (Bywire News) - Lawyers have had it with the government. On Monday, April 11 they began direct action against what one lawyer called Dominic Raab’s department’s “masterclass in deception” over Legal Aid.
Legal Aid chaos
Bywire News has been following the situation with Legal Aid and the Criminal Bar Association (CBA). Essentially, successive governments have cut and cut again spending on Legal Aid. Then, Theresa May’s government commissioned a review of the situation. When the independent panel doing the review published its findings in December 2021, it said the government needed to put a minimum of £135m into the Legal Aid system to stop it from falling apart.
The government dithered and delayed with its response to the review – eventually publishing this on March 15. But some legal professionals were unhappy. Solicitor at Tuckers Law Stephen Davies noted how the government had “ignored” the gender pay gap; made a meagre offer of more funding for junior solicitors; “ignored the issue of diversity” (or lack of) and will be implementing an “advisory board” that sits between the Ministry of Justice (MoJ) and the legal profession but one that will have “little teeth”.
But Davies was most critical of the government’s funding offer – calling it and other measures a “masterclass in deception”.
“Alleged” funding increases?
He said that the independent review panel recommended the government “could” increase Legal Aid fees by 15% - and that the government is essentially misrepresenting this as gospel. Plus, the CBA will only accept 25%. Yet 15% is what the government is putting in place across different areas of Legal Aid work. Davies said that overall:
“I simply do not accept, even if 15% were true, that parity is achieved… The alleged 15% is based on the trajectory of volume of work in 2024/25. In theory, Legal Aid spend increases, but so does the work. More money, but more work. More volume = more overheads = impact on profit. What is the actual %? Who knows, but it’s not 15%”
So, the government’s previous inaction plus its obtuse response was too much for the CBA. Its chair Jo Sidhu QC previously said its members were “exacerbated” by the government’s “complacency” over the state of Legal Aid. He said the CBA: “waited some three and half years for the… [review] to arrive while we continued to firefight a crisis unprecedented in the history of our criminal justice system”. So, it balloted members on whether to take direct action or not. They voted by over 98% to take direct action against the government.
Now, that action has started.
Refusing return work
On April 11 CBA members began “refusing to accept return work”. These are cases that fall under the Advocates’ Graduated Fee Scheme (AGFS) – the payment system for Legal Aid. In short, it means barristers will not be taking on extra work that is not booked in with them – for example, if a trial overruns or another barrister ends up being double booked and has to drop a case. The Guardian’s legal correspondent Haroon Siddique described return work cases as:
“those with no professional obligation to accept, criminal barristers take on if returned from the original barrister as a gesture of goodwill to prop up the criminal justice system”.
So, in other words, CBA members will, by refusing to return to work, start to clog up the criminal justice system because cases won’t be able to go to or continue in court. Moreover, the CBA’s action is opened-ended. It said [p1] in a statement that:
“The action will be maintained until Government agrees to a fair settlement of the Criminal Bar’s longstanding concerns about unacceptably low Legal Aid fees that are driving hundreds of our barristers out of criminal practice. The loss of so many criminal barristers means that there are now insufficient prosecutors and defenders available to reduce the backlog of nearly 60,000 cases in the Crown Court. Without immediate action by Government to substantially increase Legal Aid fees, more barristers will be forced out of criminal work and the backlog will grow longer, leaving victims and defendants waiting years for their cases to be heard”.
Stark facts
The facts behind the CBA’s reason for taking this action are stark. As outlined [p1]:
- “The number of specialist criminal barristers has shrunk by a quarter in the last 5 years.
- The speed at which criminal barristers exited Legal Aid work quadrupled in 2020/21.
- 280 trials in the last quarter of 2021 were adjourned due to shortages of barristers.
- Shortages have contributed to cases now taking an average of 700 days to complete.
- In their first 3 years, after expenses specialist criminal barristers earn a median of £12,200.
- Legal Aid Incomes after expenses for all specialist criminal barristers fell by 23% in a single year between 2019/20 to 2020/21 to an average of £47k.
- 83% of criminal barristers incurred personal debt or used savings in the pandemic.
- 23% of criminal barristers are working more than 60 hours per week.
- The government saved £240m in 2020/21 in unspent Crown Court Legal Aid payments”.
The BBC: misrepresenting the CBA?
Some of the media reported on the CBA’s action. The BBC seemed to misrepresent what the CBA was doing. It originally ran with the headline:
“Thousands of barristers to strike over legal aid”
Not the case, as deputy news editor of the Law Society Gazette John Hyde undefined by saying:
“Important to be clear that barristers aren't on strike. They've simply stopped doing favours for the justice system on rates that politicians wouldn't get out of bed for”.
Later, the BBC clearly realised the headline was not true – so it changed it to:
“Thousands of barristers take action over legal aid”
The BBC article also misrepresented the independent review of legal aid, saying the CBA:
“has accused ministers of dragging their feet over implementing a 15% rise in rates for Legal Aid - as recommended by an independent review”.
As Davies said, the independent review did not recommend 15% as a firm figure. Moreover, the BBC claimed:
“The CBA said 15% was the bare minimum needed to stop the system from collapsing”.
Again, this is not strictly true. The CBA explicitly stated [p2] in a briefing document that it was the independent review that said 15% was the “minimum necessary” and:
“CBA members voted for a 25% increase to fees and hourly rates from 11th April 2022 to mitigate the decline in real incomes and to halt the continuing exodus of barristers”.
The BBC failed to mention this.
MoJ: tight-lipped
As the Independent reported:
“Justice secretary… Raab previously told the House of Commons strike action was “totally unwarranted” and called for the CBA to take on a “more constructive tone”."
As of 1 pm on April 11, neither he nor his department had commented on the CBA’s action. Currently, the MoJ is running a consultation on the review and its response – which, as with many government consultations, will probably end up delaying the changes and watering them down even further.
“Burned out”
The best summing up of the situation came from the writer known as the Secret Barrister. You can read their full article here. It was their assertions about the state the government has left the Legal Aid system in which encapsulated just why the CBA is taking action. They said:
“The thing is, you see, we are burned out. Hundreds of criminal barristers have left the profession since 2016, financially ruined by over a decade of incessant cuts to our pay and physically shattered by the gruelling conditions of a defunded criminal justice system where nothing – even down to the court lifts, toilets and running waterworks as it should. In October 2021, a quarter of those clinging on said that they intend to leave. It means those of us who remain having to take on more and more work, while real-terms pay continues to go down”.
Summing up, the Secret Barrister said:
“We have worked 80 hour-weeks, many of those hours for free, to keep the system running while this government has denigrated and lied about us. We have done so at enormous cost to our health, our families and our wellbeing. We have acted with integrity and goodwill, doing our best daily to support society’s most vulnerable while the Prime Minister falsely blames us for the problems caused by his own party’s cuts”.
The CBA is not taking this action lightly – but it clearly feels it’s needed. But will the government listen? Given the MoJ’s intransigent and outright misleading response to the independent review, coupled with it and Raab’s repeated lies – it seems that this issue will not be resolved any time soon.
(Writing by Steve Topple, editing by Klaudia Fior)