The government is trying to break barrister’s direct action over Legal Aid

An arm of the Ministry of Justice is trying to circumvent barrister’s refusal to take return work.

Credit: Bywire News, Canva
Credit: Bywire News, Canva
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LONDON (Bywire News) - Direct action by criminal barristers against the government’s shambolic oversight of Legal Aid has entered its second week. Now, it’s emerged the Ministry of Justice (MoJ) is trying to break its “no returns” protest by encouraging lawyers to take on the work. 

Legal Aid: in the spotlight 

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 called it a “masterclass in deception” – saying that the 15% funding increase it offered was not what the independent review explicitly said was needed and that it wasn’t enough, anyway.

So, the CBA began direct action against the government on April 11. 

Direct action

Members began “refusing to accept return work”: 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 overrun 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. 

Clearly, the government is aware of the potential disruption the CBA’s action could induce. Because now, a branch of the MoJ is trying to break the barrister’s refusal to accept return work. 

The Legal Aid Agency 

The Legal Aid Agency is an arm of the MoJ – an “executive agency”. In 2013, it replaced the Legal Services Commission, which was a non-departmental public body [p1] – therefore, partially independent. The new agency deals with Legal Aid claims and funding. But for years, professionals haven’t been happy with it. 

Parliament’s justice committee took evidence from lawyers and barristers on the Legal Aid Agency. One described it as “the voice of the government against the [legal] profession”. Another, as the committee noted, said there was:

a perception within the professions that there is a “culture of refusal” at the Agency, where the slightest slip leads to application for legal aid being refused”.

A barrister said the agency focused:

on trying to find why someone would not be eligible even when their case concerns the fact that they are homeless and destitute and do not have a roof over their head”.

Clearly, within the legal profession, the Legal Aid Agency is viewed dimly. So, it’s of little wonder then that it is now leading the government’s charge to try and break the CBA’s direct action.


As the Law Gazette wrote the Legal Aid Agency:

is looking for solicitor higher court advocates (HCAs), qualified to appear in Crown courts, to pick up the cases no longer being covered by barristers. 

On the fourth day of the barristers’ work to rule, the body that administers the legal aid budget wrote to criminal law firms asking them to register their interest in picking up Crown Court cases for their available HCAs. 

From next Wednesday, the… [agency] said it will run a temporary helpline for firms 'who need to secure alternative representation to find… (HCAs) who may be able to represent clients in the Crown court'”.

In any other situation involving industrial action, the Legal Aid Agency’s actions would be considered “strike-breaking” and the HCAs carrying out the work would be classed as scabs. Some lawyers are treating the action as such, with one tweeting:

Me and my firm offer 100% to @TheCriminalBar. Neither I nor any other of our HCAs will be helping @LegalAidAgency in its pathetic attempt to divide and rule #noreturns”.

Another said:

No HCA at Payton's will take on CC work that originally briefed Counsel cannot undertake. The Bar has our full support and respect!

The MoJ: weasel words 

Meanwhile, justice minister James Cartlidge said: 

as a result of our reforms the typical criminal barrister will earn nearly £7,000 extra per year.

This is a significant pay rise and I encourage the… [CBA] to work with us, rather than pursue unnecessary disruption in the courts which will only serve to delay justice for victims”.

But this £7,000 (presumably the 15% funding increase) is nowhere near what the CBA has called for at 25%. As one barrister summed up:

“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, its action looks set to continue as the impasse with the government grows. 

(Writing by Steve Topple, editing by Klaudia Fior)

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