Barristers in criminal cases across England and Wales have taken industrial action over a criminal legal aid pay dispute. Barristers are reacting to an average decrease in real earnings of 28 per cent since 2006, with average earnings from legal aid falling by 23 per cent over the pandemic.
The strike is led by the Criminal Bar Association, in response to UK government proposals to uplift the amount these barristers are paid by 15 per cent. Barristers dispute that the proposal entails a 15 per cent increase in practice and are calling for an increase of at least 25 per cent. Over 81.5 per cent of Criminal Bar Association members who voted supported industrial action.
We recently published a book looking at criminal justice under austerity so have spent a lot of time thinking about the underfunding of criminal legal aid. In this article, we want to give voice to some of the barristers we spoke to for our book. Their experiences are crucial to help understand what has led to the present industrial action.
Funding was a big concern for all the barristers that we interviewed echoing the unsustainable nature of current funding arrangements identified in the recent Bellamy Review. The higher levels of remuneration available in other areas of law risked the most skilled lawyers neglecting criminal practice:
“If you pay people more, you will have higher skilled people moving into those areas who are able to produce better results … the criminal justice system is losing out on the brightest and the best because they’re going into other areas. There has always been that conflict because civil is always going to pay a hell of a lot more than criminal and family, but, in my experience, there are lots of brilliant, up-and-coming barristers who … wanted to go into criminal law, but they are not going into it because of the remuneration. And the system will suffer because of that.”
The paucity of remuneration was the most significant concern for these barristers as it diverted the best lawyers towards other more lucrative areas of practice. As a result, there was much worry about the decline of the criminal Bar:
“The criminal Bar is dying from the ground up. I would be amazed if there’s a criminal Bar in 50 years’ time … You look at all Chambers around the country, and you look at the criminal teams in each of those Chambers? They’re just getting smaller and smaller, and older and older. And it’s because legal aid is obviously killing it.”
That the criminal Bar might be waning in this manner was a major anxiety among the barristers with whom we spoke. It was articulated in bleak terms in every interview that we conducted. So much so that some barristers found it hard to recommend criminal practice as a career:
“I used to have students come with me, and I’d be evangelical about the job and say, ‘This is a terrific job, it’s a good career, if you’re passionate and you’re interested, go for it, because you’ll really enjoy it.’ Seven or eight years ago, things started to change. Now, if people come with me for work experience, I’m putting amber lights in their way, and red lights, when I used to be wholly green.”
The recent Legal Aid Census highlighted problems with finding barristers to do such work, in terms of recruitment but also retention. Indeed, barristers in our interviews explained how these problems went beyond recruitment and onto retention as chambers struggled to hold onto criminal barristers:
“Retention is the main problem. Retaining people. They’ll come in, they’ll start off the mixed practice, and then they’ll go off. I think retention is an issue, in any event, with kind of young people at the Bar … You’ll see a lot leaving and then not coming back.”
The financial reward no longer outweighs the high workload barrister face. Barristers struggle to achieve a healthy work–life balance and increasingly question their choice of specialism in criminal law:
“The workload is getting heavier and heavier and heavier, the pressures are getting heavier, what’s expected of everybody is getting greater, and the money is getting less … for the level of stress and the number of hours that you do put in, people are starting to wonder whether it is worth it.”
The overriding sense we got from our interviews was that the way these barristers are remunerated reflected a lack of appreciation for the work of the criminal lawyer; criminal legal aid was an ‘easy target’ and had been dismantled and degraded because the public cared little about ‘criminals’. Some barristers felt that politicians have worked against criminal legal aid:
“This is not a party-political point because it started with Labour, actually. It became seen, initially, as a way of bashing criminals. So by talking about slashing legal aid, it made it sound like they were being tough on criminals … there’s no votes in funding defendants. Like I said, no voter thinks it’s going to happen to them. But I’m afraid it does.”
The importance of criminal legal aid as an institution that upholds the rule of law and equality has been overlooked and allowed criminal defence as a profession to be debased. It is this which allows the situation in which, one barrister told us, ‘the worst case scenario … in 20 years, we haven’t got any criminal Bar’. Criminal barristers have had enough of being ignored and this is why they have been pushed into taking industrial action to stand up for the crucial role they play in access to justice.
Daniel Newman and Roxanna Dehaghani are Senior Lecturers in Law at Cardiff University.
Experiences of Criminal Justice: Perspectives From Wales on a System in Crisis by Daniel Newman and Roxanna Dehaghani is available on the Bristol University Press website. Order here for £26.99.
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