After a summer of skirmishing, marked by intermittent walkouts and the exchange of tetchy letters, the dispute between criminal barristers and the government has become existential. From next week barristers representing legally aided defendants will be on strike. Without defence advocates, defendants cannot be tried or sentenced.
Dominic Raab, the Justice Secretary, has refused to negotiate with barristers at all, although he did briefly break into his summer holiday to write a few tendentious paragraphs in the Daily Mail, accusing barristers of holding “justice to ransom”. Yet it is not barristers who have produced the dilapidated and underfunded justice system, or the vast backlog of cases that leads to witnesses and defendants waiting years for their trials. Nor can the surviving members of the criminal bar be blamed for the fact that a quarter of their colleagues have given up in the past five years. The fault lies entirely with the government of which Raab remains, until next month, a member – and, to be fair, with its recent predecessors too.
In December 2018 the government began a review of criminal legal aid, which pays for legal representation for those who otherwise could not afford it. It appointed a panel of the great and the good, the greatest and best among whom was Lord Bellamy. Bellamy’s panel took time to deliberate. It collected evidence over three years. It found that criminal barristers’ earnings had fallen steadily in real terms since 2005. Finally, in November 2021 the panel recommended that an increase in advocates’ fees of 15 per cent – equivalent to an annual increase in expenditure of £35 million – was “the minimum necessary to sustain the criminal bar.”
Had the Ministry of Justice immediately implemented the 15 per cent increase barristers might have been, if not satisfied, at least prepared to continue to work for a little longer in a criminal justice system that is coming apart at the seams. But it did nothing of the sort. Instead it delayed implementation of Bellamy’s recommendations.
For seven months the government simply did nothing at all, citing a non-existent need for further “consultations”. It then abandoned that argument, and asserted that it would be unlawful to apply any fee increase to existing cases. That ridiculous claim was abandoned in July and the government has now fallen back on the very Yes Minister line that it is “administratively impossible” to back-date fees without spending a “disproportionate amount of taxpayers’ money”. While the Ministry of Justice does have a record of wasting disproportionate amounts of taxpayers’ money on computer systems that don’t work very well, no one believes that its software is so poor that it cannot be made to calculate an immediate increase in fees.
The problem for legal aid barristers is that they normally receive nothing at all until a case has concluded. There is no money up front. There are no staged payments. If there is a trial (and sometimes even if there is not) that conclusion might be one, two or even three years after the legal aid order was issued. The implementation of the 15 per cent increase, considered the bare minimum to sustain the profession in November last year, has already been delayed by ten months. And there is now a backlog of nearly 60,000 cases in the system which will need to be worked through before barristers receive any increase at all through payments for new cases. Inflation was 5 per cent when Bellamy reported: it has since doubled is set to rise further. As the government knows perfectly well, by the time the 15 per cent increase actually materialises, it won’t be an increase in real terms at all. No wonder barristers feel that the government has not been acting in good faith.
Of course the barristers’ dispute is merely a part of a much wider problem. Cuts to criminal justice were deeper than those to almost any other government department during the coalition years, and they have not been restored since. Criminal solicitors face very similar problems to those of barristers. The court buildings themselves are crumbling. The prisons are more disgusting than ever. Barristers and solicitors are leaving criminal law in droves. Both professions are fast ageing as young lawyers realise that with debts of around £100,000 incurred in training, they simply cannot afford to practise it.
That is why this dispute is existential. If the government wins, the haemorrhaging of barristers from criminal law will be impossible to staunch. Some will find alternative areas of law to practise, some will retire and the many who cannot afford to retire will simply work until they die which, given the ageing profile of the profession, may not be for very long. A rump of barristers – mainly those with inherited wealth or a private income – will remain, but the independent, specialist criminal bar will effectively cease to exist.