Max Hill QC, Chairman of the Criminal Bar Association, will give a speech this evening hitting out at the government's cuts to the legal aid budget and barristers fees, arguing “the criminal justice system is at risk because barristers’ role within it is becoming increasingly less viable”. He will threaten the government with industrial action by barristers – although this is unlikely to happen without further discussion with the association's 3,500 members.
The results of a survey of CBA members show that 89 per cent would be willing to take direct lawful action, such as refusal to attend court. The majority of respondents had experienced delays in payment from the Legal Services Commission.
This is fighting talk. For many people, the idea of barristers going on strike will seem absurd. The government's cuts to the legal aid bill have been presented as necessary to prevent "fat cat" lawyers running off with vast sums of government money. It's a familiar story. However, quite apart from the effect that the legal aid cuts will have on numerous people who find themselves unable to get legal aid support in their divorce or domestic violence cases, the separate cuts to legal aid fees may well push many barristers into bankruptcy. Fees were cut by 13.5 per cent by the Labour government, and a further 11 per cent by the current government.
Max Hill says that when he took over the role of Chairman in 2010, he was ready for the challenges presented by a recession and ongoing economic uncertainty:
But I did not know that there would be such heartache, depression and personal bankruptcy caused by the wanton failure of central government to shore up the Legal Services Commission in such a way that they might pay us in reasonable time for concluded cases.
I did not know that criminal barristers would email, ring or meet me to tell how they couldn’t pay their tax in January.
This comes as no surprise to me. Magistrates' court work, which forms the majority of legal aid cases, is extremely badly paid. Barristers, who are often pupils or young junior barristers, get paid around £50 per appearance, which is the legal aid fee. The disorganised state of most courts means that they are kept waiting around all day for the case to come up, so they can't usually do more than two cases per day, if that.
Solicitors receive the money, and it is their job to pass it on to the barrister. Unfortunately, this doesn't happen quite so straightforwardly as it might seem. Delays are commonplace, and non-payment happens far more often than you'd expect. Barristers are self employed, so if there's no work, there's no money, and if there's no money, there's no job security to see them through. Out of this money, barristers must pay chambers rent, often as much or more than 14 per cent of each £50 payment.
The legal aid bill is predicated on the assumption that people who don't get legal aid should be able to represent themselves in court. It's not surprising that this government thinks that several years of training, bar school, and practise are expendable. But it's a fallacy, as we would soon discover if the barristers did go on strike -- something that would be totally without precedent. Courts that did open would be chaotic, the waits longer than ever, with people desperately trying to fight their cases with no knowledge of the law. Miscarriages of justice would be par for the course. I suspect we would soon discover that legal aid is worth investing in.
Tim Kevan, writer of the BabyBarista novels and columnist for the Guardian, tells me:
If legal aid work pays significantly less than other areas, it is likely in the long run to discourage away the best candidates. This undermines one of our most precious and basic rights: that of the state guaranteeing to all, regardless of means, the right to a fair trial.
This appears to be just what is happening.
Barristers should have just as much right to strike as any other group if they are being wronged. As Hill says, “the time has come to bypass our political masters. If they won’t listen to us, let us go to the public, because that is where governments are vulnerable. Our causes are just.
“In all things, I say we should do what we do so well in court already, every day. Fight without fear or favour.”