NEWS
CRIMINAL LAW COMMITTEE UPDATE: BARRISTER LEGAL AID STRIKES July 2015 was implemented but later suspended by the government. Even more damaging reforms proposed since then have been successfully resisted as a result of action by the professions.
A deeper analysis of these issues can be found in my Committee’s evidence to the Justice Select Committee, during their enquiry into the sustainability of legal aid in 2020. In summary, both solicitors and barristers practising criminal law face an existential threat as a result of the significant underfunding of criminal legal aid, with very few new entrants into the profession and many barristers and firms exiting the market. In December 2018, Sir Christopher Bellamy was appointed by the then Lord Chancellor to lead an independent review of criminal legal aid (CLAIR). His final report was published in November 2021. Its central recommendation was that funding for criminal legal aid should be increased, as soon as possible and as a bare minimum, to an annual level of 15% above present levels.
Those of us who follow the news cannot have failed to notice reports of the industrial action by barristers practising in the criminal courts. Action has been steadily escalating since June, and, at the time of writing, those participating have just begun their first full week of refusing to undertake legally aided defence work. The Criminal Bar Association says that if a deal is not agreed with the government, criminal barristers will stage further five-day walkouts every other week until its demands are met writes chair of the Birmingham Law Society Criminal Committee, Matt O’Brien. This will no doubt have an effect upon the courts’ ability to clear the significant backlog of around 58,000 cases currently awaiting trial in the criminal courts. The CBA say that the action is necessary to ensure that there is a sustainable and diverse profession able to serve the criminal courts in the future. Solicitors undertaking legally aided criminal cases are in a different position to barristers, as they are unable to refuse to work under the terms of the criminal legal aid contract. Their choice is much 28
starker – either to do the work on terms imposed by the government, or to refuse to undertake such work at all. Nevertheless, many solicitors will be carefully considering whether to sign up to new criminal legal aid contracts, set to commence by the end of the year. In order to understand how this situation has come to be, it is necessary to take a brief look at the recent history of criminal legal aid funding, and the current government’s reform proposals that have triggered the action by the CBA. Time-based fees paid to solicitors and barristers were almost entirely replaced in the 1990s and early 2000s by a scheme of fixed fees. These fixed fees were originally based on the notional average times spent on different cases, based on rates set (and not increased since) the 1980s. Rather than increase over time, along with the hourly rates in other areas of work, these fixed fees have instead been cut by successive governments, both in absolute and real terms. For example, in 2014, the government implemented an 8.75% cut of all solicitors’ fees, despite independent research that showed that the market was too fragile to sustain such a cut. A further cut of 8.75% in
This central recommendation was welcomed by my Committee, and indeed by most practitioners and representative bodies, reflecting as it did our serious concerns about the sustainability of the criminal legal aid market, and the profound constitutional impact of the failure of that market. We anxiously awaited the government’s response to the independent review, which came nearly four months later, on 15th March. The response took the form of an extensive consultation document, which set out the various proposals both for fee increases and wider reform of the market. The BLS Criminal Law Committee, in responding to that consultation, observed that the government’s response fell significantly short of addressing Sir Christopher’s central recommendation. Rather than a 15% increase in legal aid funding, the government’s own impact assessment predicted an average 9% increase in the fee income received by criminal legal aid solicitors by 2024. So, not immediate, and not 15%. It was self-evident that such a modest increase in fee income would not enable private providers to offer salaries that would compete with those being offered by the Crown Prosecution Service. Nor could firms compete with the terms offered by practices in other areas of the law. birminghamlawsociety.co.uk
